# FILED April 11, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON JANUARY SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9508- CR-00237 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. DA ILEY THEODORE F. H OWARD, ) JUDGE ) Appe llant. ) (AGGRAVA TED BURGLARY)
ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF SHELB Y COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : DANIEL FLATT CHARLE S W. BURSO N Assistant Public Defender Attorney General& Reporter 201 Poplar - Sui te 2-01 Memphis, TN 38103 TONY BRAYTON CLINT ON J. M ORG AN Assistant Public Defender Assistant Attorney General 201 Poplar - Sui te 2-01 450 James Robertson Parkway Memphis, TN 38103 Nashvill e,TN 37243-0493 JOHN W. PIEROTTI Distri ct Attor ney General DAVID HENRY Assistant Distri ct Attor ney General District Att

orney General’s Office 201 Poplar Avenue, 3rd Floor Memphis, TN 38103 OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION The appe llant, T heod ore F. H oward , appe als as of ri ght pursu ant to R ule 3 of the Tennessee Rules of Appellate Procedure. The Appel lant was convi cted of aggrava ted burg lary in the S helby C ounty C riminal C ourt. The Appellant was sentenced by the trial court to serve f ifteen ( 15) years as a Range I II Career Offender. The sole issuethe Ap pellan t raises for app eal is whether the trial cou rt erred in fai ling to instruct the jury on the lesser of

fense of burglary . We affirm the judgm ent of the tria l court.

At about 10:00 a.m. on September 4, 1994, a neighbor to the house located at 1155 CentralAvenue in Memphis heard a l oud b anging noi se. The neighbor

and his wife went to thei r back door and obser ved a man, who they later identif ied as the Appell ant, breaki ng out a window on the back door of the house with a brick. The property kn own as 1155 Central Avenue was the n in the possession of Uni ted American Bank due to a foreclo sure on the proper ty. The house on that proper

ty had b een v acant for approxim ately two m onths p rior to Se pte mber 4, 1994 . No one other tha n the ba nk’s age nts had permis sion to ent er or take any proper ty from 1155 Centr

al Avenue. The nei ghbors saw the Appellant

enter the hous e. The neigh bors notifi ed the poli ce, and the n the wife and another neighb or waited at the fron t of the h ouse while her husband, armed with a sho tgun, wa ited at the b ack of the house for the police to arrive.

The Appella nt attem pted to lea ve the ho use with a ceili ng fan, but then saw the neighbor wait ing at theback of the house. The Appellan t pu t the fan down in the doo rway of the house
. The neighbor wait ing in t he back told t he Appellant-3-

the police were on their w ay and to stop, but the Appell ant proceeded to go around the side of the house. The neighbor observed what appeared to be a shinyweapon in the Appel lant’s hand, and he foll owed the Appellant to the fr ont of the h ouse. He told the Appellant to put his weapon down and t o get down on the sid ewalk . The A ppella nt com plied a nd wa s held there by t he neighbor until the police ar rived. The police of ficer who ar rived took the Appellant into custody based upon the information of the wit nesses. Appell ant gave a statement to the police, introdu ced in to evide nce, in which he ad mitted break ing in to the house, taking the fan, and being caught and detained by t he neighbors until t he police arrived.

I.

The issue Appellant r aises for this Court ’s revi ew is whether t he trialcourt committed reversible e rror by failing to charge the jury wi th the instructi on for the l esserincluded of

fense of burgl ary. Only when there is

some evidence upo n which reasona ble m inds could convict t he defendant of a particul ar lesser offense is the court r

equ ired to instruct reg arding th at offense
. Johns on v. State , 531 S.W.2d 558, 559 (Tenn. 1975 ); State v. Atkins , 681 S.W.2d 571, 577 (Tenn. Cri m. App. 19 84), cert. deni ed , 470 U.S. 1028 ( 1985 ). The p ractice of so charging, when there is no evidence to support any l esserinclud ed offe nses , is not favored. State v. Mellons , 557 S.W .2d 497 , 499 (T enn. 19 77); Wh itwell v. State , 520 S.W .2d 338 , 343 (T enn. 19 75).

Various evidence was pre sented attrial by the State to prove that the buildi ng was a habitat ion. First, an employee of the United American Bank, who-4-

worked in the special a sset department handling foreclosures and rep ossessions , testif ied thatthe house at 1155 Cent ral Ave nue w as a sin gle-fam ily reside nce in
a reside ntial are a of Me mph is. This emplo yee also stated tha t the prop erty was not occup ied at the ti me of thi s burglary . A second wit ness, a neighbor livi ng behind the property at 1155 Central Avenue, test ified t hat the house was em pty forapproxim ately two m onths p rior to the ti me of the burglary. Other evi dence
as to the natu re of the hous e at 1155 Centralwas presented i n the for m of photographs of the sing le-family res idence . No proo f that th e house was not desig ned a s a fam ily reside nce w as offe red at tr ial.
The Appellant contends that because t he house at 1155 CentralAvenue
was vac ant

at t he t ime the Appellant entered the hous e, the trial cour t erred in its failure to inst ruct the j ury on burgl ary. Accor ding to T enn. Code Ann. § 39-14- 403, a person commits aggrav ated burglar

y when he or she commits burglar y of
a habitati on as defined i n Tenn. Code Ann. § § 39 -14-401 a nd 39-1 4-402. A “habitat ion” is defined as “ . . . any str ucture, including buil dings, mobile homes, trailers and tents, which is desi gned or adapted for the overnight

accommodation of persons . . .” Tenn. Code A nn. § 39-14-4 01(1)(A). “A person com mits burglary who, without t he effective consent of the propert

y owner enters

a buildi ng, other than a habitatio n (or any p ortion there of) not op en to the p ublic, with inte nt to
comm it a felony, theft or assault . . . .” Tenn. Co de Ann. § 3 9-14-402(a )(1).

The app e llant f urther argues that at some point after a house is unocc upied the house ce ases to be a habitation. After the legislature rewro te the crimin al code in 1989, there ceased to be any requirement t hat the st ructure be occ upied at the time of t he burglary in order f

or the structure to beconsidered a habi tation.-5-

State v. Ja mes F ord, III , No. 02C01-9304 -C R-00078, Shelby Count y (Tenn. Cri m. App., Jackson, filed Augu st 3, 1994 ), per m. to appeal denied (Tenn. 199 5). In Ford , the defendan t was convic ted of aggravat ed burglary of a house which
was vacant. Thi s Court held t hat the hous e that w as bu rglarize d was obviou sly designed for overn ightaccommodation and w as clea rly a “ha bitation .” From all testimony

and other pi ctorialevidence wit hin the record, the house which was entered by the Appell ant was obvious ly designed for overn ightaccommodation and, the refore, wa s within the Legislatu re’s definition of a “hab itation.”

As the evidence i s clear as to the nature of the habitation whic h the Appellant admi ttedly

entered, t he issue of t he court’s failur e to give an instruction on the les ser offen se of bur glary is witho ut merit.

We affirm the c onviction o f the trial court.

____________________________________ THOMAS T. WOODALL, J UDGE CONCUR:

___________________________________ JOE B. JONES, Presiding Judge

___________________________________ PAUL G. SUMMERS , Judge