### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON March 12, 2002 Session STATE OF TENN ESSEE v. MICKEY G. WHITE Direct Appeal from the Circuit Court for McNairy County No. 1350 Jon Kerry Blackwood, Judge

No. W2001-02429-CCA-R3-CD - Filed April 12, 2002

Following a jury trial, the de fendant was convicted of agg ravated burglary

and sente nced as a Range II, multiple offender to nine ye ars in the Tennessee Department of Correction. He timely appea led, arguing that the evidence presented was insufficient and that the trial court erred in instructing the jury as to criminal trespass as a lesser-include d off ense of aggrava

ted burglary . Based upon our review, we affi

rm the judg

ment of the

trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and N ORMA M C G EE O GLE , J., joined.
Didi Christie, Brownsville, Tennessee (on appeal); Gary F. Antrican, District Public Def ender (at trial); and Rickey W. Griggs, A ssistant D istrict Pub lic Defe nder (a t trial), for the a

ppellant , Mickey G. White.
Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assis tant Attor ney Gene ral; Elizabe th T. Rice, District Attorney General; and J erry W. N orwood, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION
FACTS
On August 8 , 2000, at

approxima

tely 8:10 p.m., t

he victim, Chris L . Dickey , was asle ep in his living room in the Bethel Springs community . He normally wor ked a 2:30 to 11:00 p.m. shift buthad stayed home tha

t day beca use of illness. He was awakened by a knock at his front door and left the living room to get his pants. When he came back into the room, the knocking had stopped, buthe he ard a“scratching” sound at his back door and, the n, a squeak as the door opened. He obtained a pistol from his bedroom and returned to find the defendant standing in his living room holding a wristwatch and a case containing binoculars, all of which belonged to the victim. The-2-

defendant asked the victi m not to shoo t, say ing that he had no t pried op en the doo r, as the victim accused, but that it was unlocked. He told the victim that he had entered the hou se becaus e he neede d gasoline for his car. The victim ma de the defendant

wait until a

law enfo rcemen t o ffice r arrived, and then he looked at his back door. He observed that the lip of the door had been pried up to gain access to the lock. The latch had been pushed and the door opened.
The victim said that his watch and binoculars case had been in a b owl in the kitchen and droppedby the defe

ndant onto the living room floor w hen the victim told him to “freeze.” The victim identified two gray

socks admitted into evidence, say in g that the socks “look[] sort of like what he h ad on his ha

nds” the n

ight of t he incide nt. Deputy Joe La mbert, of the McNairy

County Sheriff ’s Depa rtment, r esponde d to the 911 call to the victim’s residence. He discovered that the victim’s back door had been pried open and found scratchmarks, consistent

with those made by a sc

rewdriver, on the door. The defendant, who was bleeding from a head laceration, was inside the house. Af ter arresting the defendant a nd transporting him to th e h os pi ta l f or tr ea tm en t o f h is in ju ry, Lambert discovered

a screwdriver and two gra y socks in th e backs eat of h is pat rol car , where the de fendan t had b een si ttin g. Deputy Allen Strickland, also of the McNairy County Sheriff’s Depa

rtment, testified that he responded

to the 911 call, as well, and was directed by a witness to a vehicle parked on a “fie ld road” about 200 ya rds from t he victim’ s reside

nce. The vehicle , which he

had towe d, was re gister

ed to the defendant’s “wife or girlfri end.” At the con clusion of

Deputy Strickland’s testim

ony , the State rested its case.
The defenda

nt, who wa s the only

witness te stify

ing for the defe nse, said that, at the time of trial, he was incarce

rated in the Tennessee D epartme nt of Corr ection a s t he result of a 1991 drug conviction, for which he had been pa roled, a nd then the

parole revoked as the result of the instant offense. He testified that he had also been c onvicted of bribery of a public servant.
The defendant said that on August 8, 2000, he had driven his wife to her sister’s house and was “going down to the

water shed to seeif anybody was down there that I kne w that was fishing down there.” He said that the “hot light and the gas light started f lashing ,” and he

turned on to a field roadto turn around. His car went dead, and he wa s unable to restart it. He first tried to work on the battery, and pic

ked up the socks, apparently , to wipe his hands. After he was unable to restart the car, he put the

socks and

a screw driver in

his back p ocket and clipped his pocketknife to his right front pocket and began walking towa rd a house he had

seen. He knocked first at the front door and, then, went to the back door, where he said that he committed the act of trespassing. The defendant said that he pi cked up th

e binocul ars’ ca se beca

use he thought it was a cell phone, and that he picked up the watch to see what

time it was . He said

that the victim struck him with the butt of a gun and threatened

to kill him. The defendant said the victim accused him of try ing to steal his truck. He admitted that he pried openthe door but said it was only afte r he had knocked more than once at the door.-3- ANALYSIS I. Sufficiency of the Evidence
The de fe ndant argues that the evidence wa s insufficient to establish that he entered the victim’s home with the intent to commit a felony, theft, or a ssault. He conten ds that he had a plausible explanation for the screwdriver and socks that were discovered in his possession, and for picking up the victim’s binoculars and wristwatch. Hefurther contends there was no proof that he had any intent to assault the victim. The def endant asserts that

the jury appea

rs to have concluded th at he in te nd ed to co mm it a t he ft ra th er th an ag gr av at ed bu rg la ry. The State argues that there was overw helming proof that the defendant broke into the victi m’s residence and exercised control of the victim’s proper ty without his consent. The Stat e asserts that there is direct evidence that the defenda nt entered the victim’s r

esidenc e without c onsent; that h e carried a knife i n his pocket; and that he began to remove items as soon as he e ntered the residence.
In consider

ing this issue, we apply the familiar rule that where sufficiency of the convicting evidenc e is challenged, t

he relevant ques tion of the reviewing court i s “whether, after viewing the evidence in the light

most favo

rable 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, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also State v. Evans , 838 S.W.2d 185, 190-92 (Tenn. 1 992); State v. Anderson , 835 S.W.2d 600, 604 ( Tenn. Crim. App. 1992) ; Tenn. R. App. P. 13(e) ( “Findings o f guilt in c riminal a ctions whe

ther by the tria

l court or jury shall be set aside if the evidence is insuffi cient t o support the findings by the trier of fact of guilt beyond a reaso nable

doubt.”). All questions involving the credibility of witnesses, the weight and val ue t o be given the evidence, and all factual issues are resolved by the trier of fact. See St ate v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) . “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesse s for the State and resolve s all conf

licts in favor of the theory of the State.” Statev. Grace , 493 S.W.2 d 474, 476 (Tenn. 197 3). Our s upreme court stated the rationale for this rule:

This wel l -settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe

their de meanor o n the stan d. Thus the trial j udg e and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alo ne is t

here human atmosphere and the totality of the evidenc e canno t be repr

oduced w ith a writt

en reco rd in this Court.
Bolinv. State , 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v . State , 212 Tenn. 464, 370 S.W. 2d 523 (1963)). A jury conviction removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted1 Burglary of a habi tation, of which t he defendant

was convi cted, is prosc ribe d by Tennessee Code Annotated section 39-14-403 (a). -4- defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).
Tennessee Code Annotated section 39-1 4-402, in pertinent part, defines the offense of bu rg la ry: 1 (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 inte

nt to commit a f

elony , theft or

assault; (2) Remains concea

led, with t

h e intent to c ommit a felony, theft or a ssault, in a building; [or] (3) Enters a buil ding and c ommits or a ttempts to commit a felony, theft or a ssault[.] Utilizing the defini tions of “theft,” Tenn. Code Ann. § 39-14-103, and “deprive ,” Tenn. Code Ann. § 39-11-106(a)(8)(A), th e defendant arg ues that “ [t]here wa s no evide nce that [his] picking up of the binoculars and watch withheld that property from [the victim] ‘permanently or for such a period

of time as to substantially diminish the value or enjoy ment of the property .’” That may be true, but the argument overlooks the fact that burg lary can occur as the result of an unlawful entry into a dwellin g with the

“intent to commit a . . . theft,” Tenn. Code Ann. § 39-14-402(a)(1), which is what the indictment alleged. Considering the evide

nce in the light most

favora ble to the State, we conclude that there was sufficient proof for the jury

to convict the defendant of aggravated burg

lary. The evidence showed that the victim’s locked back

door was opened by

the defendant and that he picked up items of value as he walked

through the residence. From this, the jury could re asonably conc lude that the defendant entered the victim ’s dwelli ng, with the inten t to commit theft and without the consent o f the vic tim.
This issue is without merit.
II. Instruct

ion as to Cr

iminal Tr

espass as a Lesser-Included Offense of Aggravated Burglary
The defenda

nt conten ds that cr iminal tre spass is no t a

lesser-included offense of ag gravated bu rg la ry. He argues that he committed criminal trespass and tha t the evidence supports a conviction for that offe nse rather than a co nviction f

or agg ravate d burgla

ry . He cla ims, however, that since the-5-

indictmentdid not charge him with criminaltrespass and criminal trespass is not a lesser-included offense of aggr

avated burglary , his conviction should be reversed.
A person commits criminal trespas s “who, kn owing the person does not have the owner’s effectiveconsent t

o do so, enters or remains on property , or a portion thereof.” Tenn. Code Ann. § 39-14-405(a). The defendant asserts that criminal trespass does not meet the S tate v. Bur ns , 6 S.W.3d 453 (Tenn. 1999), definition for a lesser-included offe nse because all of t

he e lements of criminal trespass are not included in the elements of ag gravated burglary

. The State concedes th at crimin al trespa ss does not meet pa rt (a) of the Burns test but cites Statev. Geo rge Redd , No. W2000-01620-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 631 (Tenn. Crim. App., Jackson, Aug. 9, 2001), perm. to appeal denied (Tenn. Mar. 4, 2002), where this court held that crim inal tres pass is a lesser-included offense of ag gravated burglary under part (b) of the test. The State further argues that any error in charging the

jury on the lesser of

fense of criminal trespass was harmless since the defendant wa s convicted of the greater off ense. The claim tha

t the offe nse was criminal trespass, rather than burglary , was injected into the case by t he defe ndant, him self, ap

parentl y w anting a

ny c onviction

to be for a misdemeanor rather than a felony, with which he was charged. We ag

ree with the holding in George Redd that, under part (b) of the Burns test, trespass is a lesser-included offense of ag gravated burglary and, thus, the trial court did not err in so charging. F urther, a party

cannot create error

at the trial level and, then, seek relief on appeal because of that error. See Tenn. R. App. P. 36(a).

CONCLUSION
Based upon the foregoing author ities and r easoning , the judgment of the trial cou rt is affirmed.

___________________________________ ALAN E. GLENN, JUDGE