### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Bri efs Jul y 9, 2003
STATE OF TENNESS EE v. REGINAL D DERELL B ALDON
Direct Appeal from the Circuit Court for Lauderdale County Nos. 7168 and 7226 Joseph H. Walker, Judge

No. W2002-01766-CCA-R3-CD - Filed Septem ber 12, 2003

A Lauderdale County

jury convicted the D efendant, Reginald Derell Ba ldon, of three count s o f bu rg la ry, three counts of vandalism over $1,000, one count of theft over $1,00 0, one count of vandalis m over $500, and four counts of misdemea

nor thef t stemming

from three separ

ate break- ins. He was sentenced to a n effective term of twenty years. O n appeal, the Defendant arg ues: (1) the evidence was insuf

ficient t o support h

is convic tions; (2) the State failed to provide proper discovery pursuant to Tennessee Rule of

Criminal Procedure 16; (3) the trial court erred in deny ing a motion for mistrial d

ue to the pro secutor’s reference to the De fendant’s failure to testify ; and (4) the trial court erred in refusing to instruct the jury on aggrav ated cr

imi nal trespass as a lesser-included offense of burglary . We also address whether lost evidence deprive d the Def

endant of a fair tr ial. We modify the

judgment on one of the vandalism convictions to properly reflect the jury ’s verdi ct, altho ugh this modifica

tion does n ot chang e the ef fective sentenc e of twen

ty years. O therwise, we affirm t he judg ments of th

e trial c ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed as Modified

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OHN E VERE TT W IL LI AMS , J., joined. D. Michael Dunavant, Ripley , Tennessee, for the appellant, Regina ld Derell Baldon.

Paul G. Summers, Attorney Gene ral and Reporter; Renee W. Turner, Assistant Attorney Genera l; Elizabeth T. Rice, District Attorney Ge neral; and Tr acey

A. Bre wer, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION
At trial, the State presented proof of three separate burglar

ies committed during May 2001 in Ripley, Tennessee.-2- I. FACTS A. Tenness ee Elect

roplating

The first burglary

occurred on or about May 20th at Tennessee Electroplating. Employ ee William Broadnax testified he was the last person to l eave the company ’s warehouse at approxima

tely 11:0 0 p.m . on Ma y 19th, an d he was the fi rst t o arri ve the follo wing m ornin g. When Broadnax entere d the build ing, he noticed t hat a so ft drink machine and a pay telephone were miss ing. He said he found the soft drink machine at the far end of the ware house and noticed

it was damaged. Broadnax also observed the surveillance recorder had been moved. According to Broa dnax, he saw the Defendant at the Tina Turner Center near the warehouse on the nig ht of the break-in. Greg Woo dard, asupervisor at Tennessee Electroplating, a lso testified the soft drink machine was damaged and a pay telephone was miss ing. Wood ard state d it appeared someone had attempted to disconnect the video surveillance equipment. Acc ording to W oodard, the videotape recorded from the surveillance cameras showed the Defendant entered the warehouse at 11:13 p.m., damaged a vending machine, took money from the machine, and

left the building. He said the tape also showed the Defendant returned ar ound 1:30 a.m. Woodard indicated he knew the Defendant from sch ool.

Human Resource manager Tom Thebe au testified that after he learned of the br eak-in, he went to the warehouse and noticed the forklift had been move d. Thebeau stated he viewed the surveillance tape, which sho wed a person using the forklift. Thebeau said he recognized the Defend ant, a forme

r emp loyee, as being

the pers on on the ta

pe. I nvestig ator Stev e Sander s also identified the Defendant as the person shown on the tape.

Jamie Scott of BellSouth Public Communica tions testified BellSouth’s cost to replace the missing telephone was $93 1. Scott also estimated the machine contained $40. Charles Norman of the Coca-Col a Bottlin g Comp any of Memphi s testified the company ha d to replace its soft drink machine at a cost of $1,458. Don Sanders of Burch Food Ser vices testified that less than $500 was taken from the soft drink machine. B. Ripley High School

The se co nd bu rg la ry o cc ur re d M ay 2 2n d a t R ip le y High Sch ool. Former principal Allen Wallace testified he arrived at the school at approximately 5:30 a.m. to find the Defendant and another man breaking into vending machines. Wallace noticed the fronts of

the vending machines
were “ripped out” and a large c law hammer a nd other t ools were strewn near the machines. Wallace stat ed he immediately fled the building and contacted the police. Wallace said he later ide ntified the Defendant as one of the intruders from a book of ph ot og ra ph s a nd ag ai n i n a ph ot og ra ph ar ra y. Investigator

Jeff Fain testified he found shoe tracks which indicated the pe rpetrators entered the school from the back of the building. Janet Randle, the owner of one of the ve nding ma chines, testified she replaced the

machine at a cost of $2,145. She calculated over $128 was taken from the machine. James White, service manage r for a s oft drink

bottler, t estified two of his company' s soft-3-

drink machines were damaged

bey ond repa

ir. He es timated the cost

of replacing the machines was $2,760 an d that ove

r $390 wa s taken f

rom the ma

chines. C. Ripley P

ower and Light

Company

The th ir d b ur gl ar y o ccurre d at Ripley Power and L ight Company (“ Ripley Power”) on or abo utMay 23rd. Morris Worlds, an employ ee of Ripley Power , testified that when h e arrived a t work that morning, he noticed

a large hole in a soft

drink machine and tools strewn nearby . Worlds also found drawers, a filing cabinet, and the vault were open. He said the filing cabinet, which

had bee n pr ied open, was replaced at a cost of $291 a nd it would cost $3,500 to replace the drink machine. According to Worlds, two time-lapse videorecorder s and two standard videoca ssette recorders were ta

ken. He e

xplained the time-la

pse rec orders, which cost $990 each, were used for
se cu ri ty.
Mike Allmand, t

he presi dent of the compan y, t estified two time-l a pse recorders and one standardvideocassette recorder wer e stolen. Allmand said two of the re corder s were st ill in boxes. He also testified that $26,545 in cash and some gold coins were ta ken from a locked safe. Investigator

Fain testified that

when he arrived at the scene, he ide ntified a broken window
as the point of entry. F ain noticed that a soft drink mac hine was d estroyed a nd the office was ransacked. Fain lifted fingerprints from the inside of the filing cabinet drawer which had been pr ied open. TBI spec ial agent Robert McFadden testified the f ingerprints found in the drawer belong ed to the Def

endant. Randy Singleton testified that after midnight on May 23rd, the De

fendant gave h im, Jessie Jones, and Antho ny L

ink two vide orecor

ders whic h bore ta gs from Ripley Po wer. Acc ording t

o Singleton, the Defe

ndant had $3,000 to $ 4,000 ca sh in denomina tions of tw enty dollars o r less. Singleton said he, Jones, and Link later abandoned the e quipment in a ditch on the side of the highway when they were

unable to sell it. Singleton acknowledged he pled g uilty to possessing the stolen vid eoreco rders. Quantel Taylor and K

eysha Ha rlan, who lived together, testified that at approximately 3:00
a.m. on May 23rd, the De fendant and Singlet on awoke the m and atte mpted to se

ll them a videorecorder. Taylor stated the Defendant had

two vi deorec orders in bo xes a nd a th ird ve ry large recorder. Odean Cooper

also testified the Defe

ndan t trie d to se

ll him elec troni c equ

ipmen t in a b ox. D. Jury Verdict

The jury conv icted the Defendant of the burglar y of Tenne ssee Electroplating, vandalis m over $1,000 for damaging the soft dr ink machine, and two counts of theft under $500 for the theft of money from the soft drink mac hine and the theft of

the pay telephone . The jury convic ted the Defendant

of the burglar

y of Rip ley Hig

h School, two counts of vandalism over $1,000 for damaging the vending machines, and two counts of theft under $500 f or taking money

from the vending machine s. In

regar d to the break-in at Ripley Power, the jury c onvicted the Defendant of bu rg la ry, theft ove

r $1,000 f or steali ng the tw o time-la pse video record ers, and vandalism over $500-4-

for damaging the soft drink mach ine and the f

iling cabinet. It found the De fendant not guilty of stealing over $10,000 from the Ripley Power safe.

The trial court sentenced the Defendant to an e ffective twe nt y-year sen ten ce a s a R ang e III persistent offender.
II. SUFFICIENCY OF THE EVIDENCE

The Defendant contends the evidence wa s insufficient to support his con victions. More sp ec if ic al ly, he maintains the State presented insufficient circumstantial evidence of his identity as the perpetrator, a

nd the State’s evidence was insufficient to prove the essential ele ments of the offense s bey ond a rea sonable d oubt. This i ssue is wit

hout merit

. In Tennessee, great weight is given to the r esult reached by

the jury in a cr

iminal trial. A jury verdict accredits the State’s witnesses and resolves all conflicts in favor of the State. State v. Bigbee , 885 S.W.2d 79 7, 803 (Te nn. 1994) . On appe al, the Sta te is entit le d to the stro ngest legitima te view of the evidenc e and all reasona ble infe rences which may

be draw n theref

rom. State
v. Elkins , 102 S.W.3d 578, 581 (Tenn. 2003). Moreover, a guilty verdict removes the presumption of innocence which

the appellant enjoye d at trial and raises a presumption of guilt on appeal. State
v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this presumption of guilt. Id.

Where sufficiency

of the evidence is challenged, the relevant question for an appellate court is whether, after viewing the evide nce in the light most favorable to the pro secution, an y rational trier of fact could hav e found th

e essent ial eleme nts of the crime or crimes be

yon d a reas onable doubt. Tenn. R. A

pp. P. 13(e ); Jackson v. Virgini a , 44 3 U. S. 307 , 31 9, 9 9 S . C t. 278 1, 2 789 , 61 L. Ed. 2d 560 (1979); State v. A brams , 935 S.W.2d 399, 401 (Tenn. 1996). Th e weight and cr

edibility of the witnesses’ testimony ar e matters entrusted exclusively to the jury as the triers of

fact. State
v
. Shef field , 676 S.W.2d 5 42, 547 (T enn. 1984 ); State v. Brewer , 932 S.W.2d 1 , 19 (Ten n. Crim. App. 1996). A. Identity

The Defendant argues the State ’s circumstantial evidence that he was the person who committedthe crimes was insufficient to establish his guilt. However, two witnesses who knew the Defendant

testified they observe d the Defendant on Tennessee Electroplating’s surveilla nce tape s. Allen Wallace testified he saw theDefend ant, whom he later identifie d from pho tograp hs, breaking into vending

machine s in the hig

h school. I

n addition to direc t evidenc e of the D efenda nt’s iden tity
as the perpe trator of the offenses at Ripley High School and Tennessee Electroplating , there wa s proof that the Defendant’s fingerprints wer e found inside a filing cabinet drawer at Ripley

Power. There was also evidence the Defendant possessed videorecorders bearing tags from Ripley

Power within hours of the burg lary . The evi dence a mply supports the jury’s conc lusion that the Defendant was a pe rpetra tor in all o ffense s.-5- B. Elements of the Offenses

The Defendant summarily maintains that no rational trier of fact could have fo und the essential el ements of theft, vandalism, and burglary beyond a re asonable doubt based on the evidence presented at trial. This arg ument also lacks merit.

1. The ft A person commits theft if he knowingly obta ins or exercises control over property without the owner’s effective consent and with the intent to deprive the owner of

property. Te

nn. Code Ann. § 39-14-103. Theft is punished according the value of the property stolen. Id. § 39-14-105.

Tennessee Electroplating employees testified that after the break-in, they

noticed a soft drink
ma chine was damaged and a pay telephone was missing. Don Sanders of Burch F ood Service s indicated that money was take n from the vending machine. While his company could not determine the exact amount that was missing due to the damage caused to the machine , he statedthe amount
was less than

$500. Jamie

Scott of BellSouth testified the telephone contained approximately $40 at the time it w as taken . This proo f was suf ficient t o establis h the Defe ndant was guilty of two counts of theft under $500 as alleged in the indictment.

The Defendant was convicted of two additional counts of theft unde r $500 for taking money from vending machines at Ripley Hig h School. Allen Wallace observed the Defendant and anothe r man breaking into the mac hines. Ther e was also proof that over $128 was taken from a snack machine owned by

Janet Randle and over $390 was taken from the soft drink machines. This proof was suff icient to s upport the

convicti ons.
The jury als o convict

e d the Def

endant of theft ove

r $1,000 f

or stealing two tim

e-lapse videorecorders from Ripley Power. Mo

rris World testified two time-lapse recorders, valued at over $990 each, were missing following the bre ak-in. Randy Singleton testifie d the Def endant g ave him two recorders which were marked as belonging to Ripley Power. Other witnesses also testified they saw the Defendant with videorecorder s shortly after the time of the offense.
2. Vandalism

A person c ommits vand alism whe n he knowingly

damage s or destr

oys perso nal prop erty without the owner’s effective consent. Tenn. Cod

e Ann. § 39 -14-408( a). Van dalism, like thef t, is punished according to the value of the item destroy ed or damaged. Id. § 39-14-408(c)(1).

The jury convicte d the Def

endant of one coun t of vanda lism over $1,000 for damaging the soft drink machine at Tennessee Electroplating . Greg Woodard tes tified the surveillance video showed the Defendant damaging the machine. There was proof the machine was rep laced a t a cost of $1,458. This proof was sufficient to support the conviction.-6-

The Def endant w as convicted of two counts of van dalis m over $1,00 0 for ca usin g damage to three vending machines at Ripley Hig h School. Allen Wallace testified he saw the Defendant and his companion ripping the machines apart. Witnesses testified that the parts of the machines which held money were

removed. Janet Randle stated that the co st of r eplacing her machine was ove r $2,000. James White testified that the cost o f repla cing the other ma chines w as over $ 2,700. Thi s proof wa s suffici ent to supp ort the c onviction s.
The Defendant was convicted of vandalism over $500 r esulting from the damages to the soft drink machine and a

filing cabinet at Ripley

Power. Morris Wor

lds testif ied he not iced a la rge ho le in the company’s sof

t drink machine when he entered the warehouse on the morning after thebreakin, and Investigator

Fain also noticed the machine was destroy ed. Worlds said the replac ement co st for the machine was $3,50 0. Worlds a nd Fain te stified th at a

filing cabinet had been pried open, and Worlds said it wa s replac ed for $2 91. We con clude thi s proof w as suffic ient to sup port this conviction. 3. Burglary

A person commits burglary whe n, without the effective consent of the property owner, he enters a bui lding with the intent to commit theft. Tenn. Code Ann. § 39-14-402(a)(1). Th e Defendant

was convicted of

three c ounts of

burglary for entering the three buildings with the intent to c ommit th eft. The State’s unrefuted proof clear ly established the Def

endant entered all three buil dings without the consent of the property owners and committed the thefts. Therefore, there was sufficie nt proof t o support t

he Defe ndant’s burglar

y c onviction s.
III. DISCOVERY VIOLATION

The Defendant contends the State violated Rule 16 of the Tennessee Rules of Criminal Procedure regarding

discovery whe

n it waited until the day befor e trial to inform him that Officer R ita Burnet

t found a red jacket at Ripley Power which was similar to a jacket she had seen the Defendant wear. At trial, defense counsel objected to Officer Burne tt’s testimony and stated,

. . . [W]e were

not provid

ed with thi s informa

tion prior to trial. I

receiv ed this [facsimi le] fro m the [prosecutor] yesterday indicating that she had just received information about evidence about [the Defendant’s] coat. I wasn’t told until th

is morning what the significance of this coa t was, on the morning of trial.

We object because we weren’t g iven an opportunity to review this evidence . I’v e never seen the coat. I don’t know in what contex t it is being sought to be used to identify him or link him to this crime. . . .

The trial court overruled theDefendant’s objection and allowed the State to present Officer Burnett’s testimony that she saw a re d jacket at the crime scene which was similar to one s he h ad previous ly

seen the Defendant wear. Of ficer Burnett further testified she g av e the jack et to Inve stigato

r Fain, a nd it had si nce bee

n lost.-7-

Upon the Defendant ’s request , the State must permit the Def

endant to inspect ta

ngible objects within its possession, custody, or control which are ma terial to the p rep aration of the defense, or the State intends to use as evidence in chief at trial, or which belong to theDefend ant. Tenn. R. Crim. P. 16(a)(1)(C). The trial court entered a pre -trial order requiring the State to provide the Defendant with discovery pursuant to Rule 16, and the Defendant subsequently filed a discovery motion. The rec ord indic ates law enforc ement lost

the jacket, and it is unclear whether the State was in possession of the jacket at the time of the discovery request

. We cannot conclude the State violated Rule 16; the State cannot allow inspection of an object it does not have.

Even if there

had bee n a discov ery

violation, it was within the tri al court ’s discre tion to fashion an appropriate remedy , including exclusion of the evidence or granting a continuance. Te nn. R. Crim. P. 16(d)(2). The Defendant did not re quest a c ontinuanc e, and the trial cou rt gene rally should not exclude the evidence absent a showing that the Defendant was pre judiced to the extent that no other remedy would suff

ice. State v. Smith , 926 S.W.2d 267, 270 (Tenn. Crim. App. 1995). We further conclude the evidence agains t the Defendant was overwh elmi ng, and the limited testimony about the jacket did not affect the outcome of the trial. The record does not establish the Defendant was prejudiced. See Tenn. R. App. P. 36(b).
IV. LOST EVIDENCE

Alth ough notaddressed by either party , we conclude that the facts before us present the issue of whether the State ’s loss of t

he evide nce dep rived the Defend ant of a f

air tria l. The State

gener ally has a duty to preser

ve evidence subject to discovery and inspection. State v. Ferguson , 2 S.W.3d 912, 917 (Tenn. 1999). This includes evidence with an appare nt exculpatory value at the time it was lost. Id. If the State has breached this duty , the court must consider several factors in determining the appr opriate remedy to protec t the Def

endant’ s right to

a fundam

entally fair tri al: 1. The degree of negligence involved; 2. The sig nifican ce of the dest royed evi dence, considered in light of the probative value and reli ability

of secondary

or substitute evidence that remains available; and 3. The sufficiency

of the other evidence used at trial to support the conviction. Id.

Th ere is no in di ca ti on in th e r ec or d b efor e u s t ha t t he ja ck et ha d a ny e xc ul pa to ry value o r that the State discarded the evidence in bad faith. Further, as we have discussed at leng th, there was overwhelming evidence that the Defendant was the pe rson who committed the crimes at Ripley Power. Finally, the State’ s evidence linking the Defendant to the jac ket found by O fficer

Burnet t was very limited. Office

r Burnett testified that while she had seen t he Defendant from a distance wearing a similar

jacket, she was n ot sure it w as the sa me jacket. We conclude the State’s failure to prese rve the e vidence did not dep

rive the Defend ant of his right to a fundam

entally fair tri al.
V. PROSEC UTOR’S IMP ROPER C LOSING AR GUMENT During closing argument, the prosecutor state d, “And whose wo rd is the d efense asking you to take? His? He’s not the one that took the stand, is h e? He’s not t

he one tha

t swore under oath-8-

that he would t

ell the truth.” The Defendant objected, contending the prosecutor commented upon the Defendant’s failure to testify. The trial court

sustained the objection and immediately instruc ted the jury to “ignor

e that remark absolutely. ” Then, a

t a bench conference, the trial cour t denied the Defendant’s motion for a mistrial. The Def endant c ontends th

e trial c ourt err

ed in deny

ing his motion. The determination of whether to grant a mistrial re sts within the sound discretion of the trial court. State v. Smith , 871 S.W.2d 667, 672 (Tenn. 1994). The reviewing court should not overturn that decision absent an abuse of discretion. State v. Re id , 91 S.W.3d 247, 279 (Tenn. 2002).

It is “const itutionall y impermissible for a prosecutor to comment upon an accused’s silenc e during the course of a

trial.” State v. Transou , 928 S.W.2d 94 9, 960 (Te nn. Crim. A

pp. 1996) ; see also Griffin

v. Califor nia , 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). Although the Statecontendsthis comme nt was in r

esponse t o defens e counsel’s attack upon the credibility of the State’s witness es, in our view the comment was a blatant and impermissible comment upon the accused’s exercise of his right not to testify. T he trial court

pr operly sustained the De fendant’s objection to the remark and instructed the jury to disregardit. We agree with the trial court’s implicit ru

ling; the blow struc

k by the prosecutor wa s foul.

Since we conclude the prosecutor's re marks were improper, we must determine whether the
error prejudiced the Defendant. Although thi s was con stitutiona l error, it may

be harml ess if harmlessness is established bey ond a reasonable doubt. Transou , 928 S.W.2d at 960.

The Stat e’s pro of again st th e Defen dant w as not hing s hort o f overw helmi ng. The prosecutor made only one improper re mark, which elicited a prompt objection by the

Defendant. The trial court quickly responde d by

sustaining

the objec tion and in structi ng the jury to disreg ard the improper comment. Given these circumstances, we conclude be yond a rea sonable doubt that the Defendant suffer ed no pre judice. T he trial c ourt did no t err in de nyi ng the r

equest f or a mistr ial.

VI. JURY

CHARGE R

EGARDIN G LESSER-IN CLUDED OF FENSES

The Defendant maintains the trial court erred in ref using to instruct the jury re garding aggravated

criminal trespass of a school campus, see Tenn. Code An n.§ 39- 14-406, as a lesserincluded offense

of the bur

glary of Ripley

High School. The trial cour t has a duty to instruct the jury on any lesser- included

offense s of the c harge d offens e when su ch instru ctio n is supported by the evidence, regardless of w hether the Defendant has requested suc h an ins tru ction. State v. Bowles , 52 S.W.3d 69, 74 (Tenn . 2001); State v. Burns , 6 S.W.3d 453, 464 (Tenn. 1999). Th e standardfor an appellate court’s review of the trial court’s charge to the j ury regardi ng lesserincluded offense s is de novo with no pre sumption of correctness. State v. Moore , 77 S.W.3d 132, 134 (Tenn. 2002).

If an offe nse is found to be a

lesser-included offense, the court must next ascertain whethe r t he evi dence justifies a jury instruction on the lesser-included offense. Bowles , 52 S.W.3d at 75. To do so, the cou r t must first determine whethe

r there is eviden ce that “ reasona ble minds”could-9-

accept to establish the lesser-included offense. Burns , 6 S.W.3d at 469. The court must view the evidence liberally in a light most favorable to the existence of the lesser-included offense without judging its credibility. State v. El y , 48 S.W.3d 71 0, 722 (Te nn. 2001) ; Burns , 6 S .W.3d at 46 9. Finally , the cour

t must determine if

the evidence is “legally

sufficient” to support a conviction for the lesser-included offense. Burns , 6 S.W.3d at 469.

The evidence, not the theories of the parties, determines whe ther an instruction on a lesserincluded offense

should be given. Statev. Allen , 69 S.W.3d 181, 188 (Tenn. 2002). Furthermore, the decision to convict on a lesser-included offense should not be taken from the j ury

simply because the element distinguishing the greater offense from

t he lesser offense is “uncontroverted.” Id. at 189. If th e evidence justifies an instruction, the failure to charg e the offense is error even t houg h the evidence was also sufficient to support the gr eater offense. Burns , 6 S.W.3d at 472.

The question of whether

aggravated

criminal trespass is a lesser-included offense of bur glary i s currently be

fore our state supreme court. See State v. Reginald D. Terry , No. W 2001-03027

- CCA-RM-CD, 2002 Tenn. Crim. App. LEXI S 749 (Tenn. Crim. App. Aug. 27. 2002, at Jackson), app. for perm. to app. granted

(Tenn. Dec. 16, 2002). However, under the fa cts of this case, whether or not it is a lesser-included offense is not determinative. To commit the offense of aggr avated criminal trespass, the defendant must “intend, know,
or [be] reckless about whether [his] pres ence w ill cause fear for the safety of another” when he illega lly ent ers or r ema in s i n a b ui ld in g. T enn . C ode Ann . § 3 9-1 4-4 06( a)( 2). It is quest ionable whether a reasona

ble ju ry c ou ld fi nd th e D ef en da nt po ss es se d t he ne ce ss ar y mens rea regarding whether his prese nce woul d cause fear fo r anot her per son’s safet y when he en tered R ipley High School. Allen Wallace testifiedhe found the Defendant and his cohort breaking into the vending machines in the tea

cher’s workroo m at 5:30 a .m. These facts wo uld indica te the De fendant and his companion intended to commit the offense when the school was unoccupied. Regar dless, we conclude that e ven if it wer e error in th e fail ure to charge aggravated cr iminal trespas s, it was harmless beyond a reason able d oubt . Harm less e rror re lati ng to t he fail ure to charge lesser-included

offense s must be sh own “bey ond a rea sonable

doubt.” Ely , 48 S.W.3d at 727. The proper i nq ui ry i s “whether it appears bey ond a reasonable doubt that the error did not affect the outcome of the trial.” Allen , 69 S.W.3d a t 191. I n making the harm less error det erminati on, this court must “conduct a thorough examination of the record, including

the evide nce pre sented a

t trial, the Defendant’s theory

of defense, and the verdict returne d by the jury .” Id.

In sum, when a

reviewing court determines whether a lesser-included

offense ought to be charged, the evidence clearly c ontrols. If there is evidence sufficie nt to support a convic tion for a

lesser- included

offense , we hold t

hat a tria l court mus t charge that offense. The determinative test being whether there is evidence sufficient such that a j ur y could

convict on that le sser-included off ense. I f a jury could con

vict,
no matter how improbable, it is error not to charge that lesse r-include d o ffense. However, in decidi ng whet her it was harmles s bey ond a rea sonable d oubt not to charge a lesser-included offense, the revie wing court must deter

mine w hether a
reasona ble ju ry wou ld

have co nvicted t

he defe ndant of t he lesse r-includ ed offe nse-10-

instead of the charged

offense. In other w ords, the reviewing court must determine whether it appea rs bey ond a rea sonable

doubt that the trial court’s failure to instruct
on the lesse

r-inclu ded o ffense did not affect the outcome of the trial. Allen , 69 S.W.3d at 191.

State v. Richmond , 90 S.W.3d 648, 662 (Tenn. 2002) (emphasis in original).

The evide nce ove

rwhelmin gly

establish ed a burg lary . It is undispute d the scho ol w a s unlawfu lly

entered, and it is undisputed that a theft occ urred t herein. The Defendant’s theory of defense was misidentification. The jury c learly found this def ense to be with out merit. Thus, we conclude beyond a re asona ble do ub t t ha t n o r ea so na bl e j ur y would have convicted the Defendant of ag gr av at ed cr im in al tr es pa ss in st ea d o f t he ch ar ge d o ff en se of bu rg la ry.
VII. JUDG

MENT ERROR

With regar

d to the vandalism count at Ripley Power, the indictment alleg ed vandalism over $1,000. However, the transcript of the jury ’s announcement indicate d a guilt

y verdict of vanda lism
over $500, not $1, 000. Likew ise, the v erdict f orm signed by

the fore person in dicates vandalis m over $500, not $ 1,000. Va

ndalism ov er $500 isa Class E felony, see Tenn. Code Ann. §§ 39-14- 105(a)(2), -408(c)(1), wit h a range of punishment of four to six years as a Range I II persistent offe nder, see id. § 40-35-112(c)(5). However, the tria l court mistakenly sentenced the Defendant to ten year s for vanda lism over $1, 000, a Class D felony, see id. §§ 39-14-105(a)(3), -408(c)(1), which has a range of punishment of eig htto twelve yea

rs as a persistent offender, see id. § 40-35- 112(c)(4). The erroneous sentence imposed by the trial court had no effect upon the eff ective twenty -y ear sen

tence because it

ran concurrently

with other sentences. We remand for entry of an amended judgment for Count 9 of Indictment No. 7226 to re flect a sentence

of four years f or vandalis m over $50 0 to run co ncurre ntly with other

sentenc es in that indictmen t.
VIII. CONC LUSION

We conclude the evidence was sufficient

to support the Defendant’s convictions. Further, the State did not violate Rule 16 of the Tennessee Rules of Criminal Procedure, nor did the State’s loss of physical evide

nce deprive the Defendant of a fair trial. The trial court did not err in denying the Defendant’s motion for a mistrial based on the improper remark by the prosecutor during closing argume nt. Finally, the trial

court co mmitted no r

eversib le erro

r in refu sing to c harge

the jury as to aggravated

criminal trespass as a lesser-included offense of burg lary. We do, howeve r, remand for entry of an amended judgment to properly reflect a sentence of four ye ars for vandalism over $500 for Court 9 of I ndictmen t No. 7226. Otherwi se, we a ffirm the judgmen ts of the tr

ial cour t.

____________________________________ ROBERT W. WEDEMEYER, JUDGE