State v. Roberts

• Decision Date: 16 April 1996
• Citation: 943 S.W.2d 403
• Parties: STATE of Tennessee, Appellee, v. Phillip S. ROBERTS, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 403

943 S.W.2d 403

STATE of Tennessee, Appellee, v. Phillip S. ROBERTS, Appellant.

Court of Criminal Appeals of Tennessee,

at Knoxville.

April 16, 1996.

Permission to Appeal Denied by

Supreme Court Nov. 12, 1996.

Gale K. Flanary, Asst. Public Defender, Blountville, for Appellant.

Charles W. Burson, Attorney General and Reporter, Clinton J. Morgan, Asst. Attorney General, Nashville, Carl K. Kirpatrick, District Attorney General, Phyllis Miller, Asst. District Attorney General, Blountville, for Appellee.

OPINION

PER CURIAM.

At his jury trial, the defendant was convicted of four counts of burglary, three counts of attempted theft of property valued at more than one thousand dollars but less than ten thousand dollars, and one count of possession of burglarious instruments. He was sentenced to imprisonment for four years for each of the attempted theft offenses, eleven months and twenty-nine days for the possession of burglarious instruments offense, and four years for three of the four burglary offenses. ¹ These sentences are to be served concurrently with one another. The fourth burglary offense ² resulted in a sentence of two years imprisonment which is to run consecutively to the other sentences, for an effective sentence of six years. The defendant raises three issues on appeal challenging the judgment below. He first contends that the trial court erred in failing to dismiss the auto burglary charges. In his second issue he contends that the court erred in allowing cross-examination of the defendant as to his prior convictions. Finally, he contends that the evidence was insufficient as to the attempted theft charges. We agree with the defendant on his first issue and reverse his convictions and dismiss three of the burglary charges.

FACTS

At approximately 3:30 a.m. on August 21, 1993, Kingsport, Tennessee, police officers Brian Taylor and Tim Candler were off duty and in the apartment they shared at the Cross Creek apartment complex. Mr. Taylor heard a noise outside the apartment which prompted him to look out his window. He observed a man inside his neighbor's Ford Probe automobile looking around the ignition and steering column area of the car. Mr. Taylor continued to watch as the man left the Probe and went to a nearby Mazda, entering it by using a tool. The man focused his attention again on the ignition and steering column of the Mazda as he did in the first car. Mr. Taylor observed the man as he went to a third car, a Buick, and entered it using a tool as with the Mazda. He could not see what the man did after he entered the third car.

Mr. Taylor woke Mr. Candler and they called the police department. Messrs. Taylor and Candler then went to the parking lot to apprehend and arrest the man, who is before this court as the defendant. Upon apprehending the defendant, the officers found on his person an array of burglary tools, including a screwdriver with red paint on the tip and a mask made from a red T-shirt over his head and face. On-duty police officers arrived immediately thereafter and took custody of the defendant along with the mask and tools.

ISSUE I

For his first issue, the defendant argues that his four convictions for burglary of four automobiles should be dismissed because the acts of entry into those automobiles, which were the bases of the burglary convictions, were merely a part of the attempted theft of those same vehicles, and therefore may not support separate convictions for burglary in addition to the convictions for attempted theft.

The defendant relies chiefly on State v. Anthony, 817 S.W.2d 299 (Tenn.1991), in making his argument. The defendants in Anthony were convicted of both aggravated kidnapping and armed robbery for conduct arising out of the same episode. The defendants had held the employees of a restaurant at gunpoint while they robbed it. Id. at 301. The court explained that the dual convictions did not raise a double jeopardy issue, because the offenses of aggravated kidnapping and armed robbery clearly involved separate elements such that, even for conduct arising out of the same episode, convictions for both would not violate double jeopardy principles. ³ Anthony, 817 S.W.2d at 303. See Tenn. Const. art. I, § 10; U.S. Const. amend. V.

However, the Court continued, such a kidnapping conviction would violate due process guarantees, if the facts on which the conviction was based were insufficient to support the conviction. Anthony, 817 S.W.2d at 306. The relevant inquiry is whether:

[the act on which the kidnapping conviction is based] is essentially incidental to the accompanying felony and is not, therefore, sufficient to support a separate conviction for kidnapping, or whether it is significant enough, in and of itself, to warrant independent prosecution and is, therefore, sufficient to support such a conviction.

Id.

Every robbery, the Court noted, by the act's very nature involves some detention of the victim. This does not mean, however, that the General Assembly intended that each robbery should also constitute a kidnapping, even though a literal reading of the kidnapping statute might suggest so. The task in each case, the Court explained, is to apply the statute narrowly, so as to make its reach fundamentally fair and guard each defendant's due process rights. Anthony, 817 S.W.2d at 306.

Applying this analysis, the Court in Anthony found that the detention of the employees that was the basis of the kidnapping convictions was not any more than was necessary to accomplish the armed robbery itself. Accordingly, the Court affirmed the Court of Criminal Appeals' reversal of the kidnapping convictions. Id. at 307.

In Anthony the Court made clear that its decision did not preclude the possibility that convictions for both robbery and kidnapping could be had for conduct arising out of the same episode. Had the victims in the Anthony situation been taken hostage, for example, then perhaps the facts would have been sufficient to support a kidnapping conviction. Id. at 308.

The Court of Criminal Appeals has since found that the Anthony principles outlined above do not apply only to cases involving robbery and kidnapping. See, e.g. State v. Gregory, 862 S.W.2d 574, 579 (Tenn.Crim.App.1993) (applying Anthony to convictions for first-degree murder, aggravated rape, and kidnapping); State v. Luster, No. 02C01-9201-CR-00019, Shelby County, 1992 WL 345443 (Tenn.Crim.App. filed November 25, 1992, at Jackson) (applying Anthony to convictions for attempted aggravated rape and aggravated assault). This case, however, is distinguishable from Anthony and its progeny because the attempted theft of a vehicle does not, by definition, involve a breaking and entering into the vehicle. For instance, a hitchhiker willingly picked up may (unsuccessfully) attempt to hot-wire the vehicle while the driver stops at a convenience store and takes the car keys with him. While the hitchhiker's actions would constitute an attempted theft of the vehicle, no actions consistent with a burglary would have preceded the offense. Thus, Anthony is not strictly applicable to this defendant's case.

Nevertheless, we conclude that the due process concerns underlying the holding of Anthony mandate a similar result under these particular facts. ⁴ Here the burglary indictments each allege that the defendant entered each vehicle with the intent to commit a theft. The theft allegedly intended in each instance was of each automobile. As required by the theft of property statute, T.C.A. § 39-14-103, the indictments for attempted theft each allege that the defendant attempted to obtain and exercise control over property, i.e., each vehicle, with the intent to deprive the owner thereof.

The intent elements in the indictments for burglary and attempted theft, though expressed in different language, are the same. Each alleges, in essence, that the defendant acted with the singular intent to commit a theft of each vehicle. The substance of the proof presented by the State at trial is consistent with the indictments. The acts of entry into each vehicle as alleged and proven at trial, therefore, were only incidental to the attempt to steal each vehicle. Just as every robbery involves some detention of the victim, see Anthony, 817 S.W.2d at 306, in this case each attempt to steal each vehicle involved an entry into each vehicle.

We note that it is not generally a violation of double jeopardy or due process protections to convict and punish a defendant for both burglary and theft. ⁵ State v. Davis, 613 S.W.2d 218, 221 (Tenn.1981); State v. Campbell, 721 S.W.2d 813, 818 (Tenn.Crim.App.1986). Burglary, T.C.A. § 39-14-402, and theft of property, T.C.A. § 39-14-103, are codified in different sections; they each require at least one different element; they protect different interests; and neither is a lesser included offense of the other. See Davis, 613 S.W.2d at 221. If, for example, the State had alleged and shown that the defendant entered each vehicle with the intent to commit some felony, theft, or assault other than to steal the vehicle, such as to steal the radio or other articles from within, and then attempted to steal the vehicle, then those alleged facts would likely require a different result from the one we reach here. However, here the acts of entry into the vehicles as alleged and proven by the State are merely an essential and incidental step in the attempted theft of the vehicles themselves. The act of breaking into the vehicles is not significant enough, in and of itself, to warrant independent prosecution where the defendant is also convicted of attempted theft. We hold that, under the facts of these cases, convictions for both burglary and attempted theft violate the principles of Anthony. Accordingly, the defendant's convictions for burglary in counts one, three and five are reversed and dismissed.

ISSUE II

For his second issue, the defendant contends that the State should not have...