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State v. Lawson

Court of Criminal Appeals of Tennessee, Knoxville

October 8, 2019


          Session July 24, 2019

          Appeal from the Criminal Court for Knox County No. 110461 G. Scott Green, Judge.

         Defendant, Curtis Logan Lawson, appeals from his Knox County convictions for burglary, theft of merchandise, and criminal trespass. Defendant argues that his burglary conviction should be dismissed because the burglary statute, Tennessee Code Annotated section 39-14-402(a)(3), does not apply to buildings that are open to the public. Defendant also argues that the trial court erred in failing to instruct the jury on principles of statutory construction and on the defense of ignorance or mistake of fact, that the evidence is insufficient to sustain his conviction for burglary, and that the trial court erred in denying his request for a community corrections sentence. Based upon our review of the record, briefs of the parties, and the applicable law, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          Mark Stephens, District Public Defender; Jonathan Harwell and Kathryn Fraser, Assistant District Public Defenders, for the appellant, Curtis Logan Lawson.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Charme P. Allen, District Attorney General; and Ashley McDermott, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., J., joined. Camille R. McMullen, J., filed a dissenting opinion.



         Factual and Procedural Background

         On May 2, 2017, Defendant was indicted by the Knox County Grand Jury for one count of burglary, one count of theft of merchandise valued less than $500, and one count of trespassing. On September 21, 2017, Defendant filed a motion to dismiss the burglary count of the indictment in light of this Court's opinion in State v. Danielle Chandria Jensen, No. M2016-01553-CCA-R10-CD, 2017 WL 3671093 (Tenn. Crim. App. Aug. 25, 2017), perm. app. granted, judgment vacated (Tenn. Dec. 8, 2017). The trial court held the motion in abeyance pending the State's presentation of proof at trial. Defendant sought permission to file an interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 9, which was denied by the trial court. Prior to trial, the State made an oral motion in limine that Defendant not be allowed to mention any other subsections of the burglary statute, which was granted by the trial court.

         I. Trial Testimony

         Robert McAuley testified that he was working as a loss prevention officer at the University Commons Walmart in Knoxville, Tennessee, on December 26, 2016. Through the store's surveillance cameras, he observed Defendant carrying a blue basket and moving very quickly through the store, which caught his attention. Mr. McAuley observed Defendant leave the chemical and paper goods department with some detergent pods and walk to the clothing department. Defendant then placed some merchandise into a plastic Walmart bag. Defendant abandoned his blue basket in the electronics department and went to the customer service area at the front of the store. Mr. McAuley observed Defendant exchange the merchandise in his bag for a refund. Mr. McAuley left his office, approached Defendant, and brought him back to the loss prevention office. Mr. McAuley got Defendant's information and asked him to give the money back, and Defendant complied. Defendant stated that it was a "late Christmas present" for his children.

         A video recording of this incident was entered into evidence and played for the jury while Mr. McAuley described what was being shown. The recording confirmed that Defendant entered the store without any merchandise, selected merchandise from the shelves, and placed it into a plastic bag. Additionally, the recording showed that Defendant presented receipts when he exchanged the merchandise for a cash refund at the customer service counter.

         Mr. McAuley testified that he printed off transaction records for the two refunds, one for a pair of jeggings valued at $12.98 and the second for toothbrush heads and dishwasher detergent pods valued at $26.70. The transaction record for the second refund showed two prior refunds in December 2016. Mr. McAuley testified that these prior returns were associated with Defendant's ID, which may be used when a person conducts a return without a receipt. Mr. McAuley then printed a training receipt to determine the total value of the items, which was $39.68. Mr. McAuley obtained Defendant's information, checked the store's database, and determined that Defendant had a previous record at a Walmart in Sevierville, Tennessee.

         The State entered into evidence a "Notification of Restriction from Property" form signed by Defendant in September 2012, prohibiting Defendant from entering any Walmart-owned property, including "all retail locations." The form states that the recipient may be "charged with criminal trespass" if he or she enters Walmart's property and that the restriction "will remain in effect until Wal-Mart Stores, Inc., rescinds it." There is a line on the form for the recipient to sign acknowledging that he has "read and understand[s] this Notice."

         On cross-examination, Mr. McAuley agreed that the University Commons Walmart was open 24 hours a day and only closed on Christmas Day. He agreed that the store was open to the public and that there were no "no trespassing" signs or other signs indicating that people who had been banned from the store were not welcome. Mr. McAuley testified that there may be a greeter at the front of the store, but the greeter does not check identification as people enter the store and does not have access to the trespass list. Individuals do not have to present a membership card or go through any other entry restrictions prior to entering the store. Customers are not checked against the trespass list when they purchase merchandise, fill prescriptions at the pharmacy, or return merchandise for a refund. Mr. McAuley agreed that an individual on the trespass list could go into a Walmart store multiple times and would not be checked against the trespass list unless there was a problem, "[l]ike shoplifting." Mr. McAuley testified that the trespass list is enforced by notifying the individuals that they have been banned, and then "[i]t's on their good faith to stay off the property." Mr. McAuley testified that he would be able to personally recognize only a small fraction of the individuals on the trespass list, which is a nation-wide list of thousands of individuals. Mr. McAuley testified that even though Defendant signed his name when he made the refunds on December 26, 2016, the clerk at the customer service counter did not have access to the trespass list to be able to check Defendant's status. Mr. McAuley agreed that no one would have stopped Defendant to check his status if he had purchased the merchandise. Mr. McAuley agreed that the trespass notice does not indicate that a person may be charged with burglary.

         On redirect examination, Mr. McAuley agreed that not every person who commits theft, trespass, or burglary at Walmart is caught. Mr. McAuley discussed the usual procedure when a person is placed on the trespass list: the notification form is read and explained to him or her, he or she can ask questions about it, and then he or she signs it. Mr. McAuley explained that it is a lifetime ban from all Walmart properties. Because the notification is a "corporate made form for every state," it does not detail specific state statutes with which a person could be charged. Mr. McAuley testified that as a loss prevention officer, he has special training on what to do "when somebody comes in that's not supposed to be in [the] store" that the clerks working the cash registers do not. On re-cross examination, Mr. McAuley agreed that he was not present when Defendant received the trespass notification and did not know if the usual procedure was followed.

         Angela McDonald testified that she was employed as an assistant manager at the Walmart in Sevierville, Tennessee. Part of her job responsibilities included giving no trespass notices when someone is banned from the store. Ms. McDonald testified that she typically gives such notices about four or five times a month and that she does it the same way every time. Ms. McDonald testified that the usual procedure includes having the individual read the form; explaining that he or she is banned from all Walmart properties, including Sam's Club and Murphy Gas, U.S.A.; answering his or her questions; and then signing the form and having the individual sign the form. Then, an asset protection associate gets the individual's personal information and puts it into the company's internal database. She did not specifically recall Defendant, but she did identify the "Notification of Restriction from Property" form that both she and he signed in September 2012, banning Defendant from Walmart property for shoplifting. She also identified the picture, taken the same day, associated with Defendant's record in Walmart's internal database.

         On cross-examination, Ms. McDonald admitted that she did not have a specific memory of her encounter with Defendant or her discussion with him. Ms. McDonald testified that she does not write "life" on the form. She testified that she is responsible for signing the form "and then the asset protection associate takes over." She was not aware if Defendant was provided a copy of the form. Ms. McDonald agreed that Walmart has a detailed company policy for how employees are to deal with suspected shoplifters. However, because the policy is updated yearly, she did not recall the policy in effect in 2012 with regard to the suggested length of time a no trespass order should be effective, which was usually determined by the asset protection associate. Though Ms. McDonald could not recall when she came into the loss prevention office during the encounter with Defendant, she knew that she saw Defendant sign the notification form because she would not have signed it herself otherwise. Ms. McDonald testified that she usually stays in the loss prevention office waiting for the police officers to show up while the asset protection associate tallies the value of the items taken. However, once the officer arrived, Ms. McDonald left the room and did not know what further conversations were had with Defendant. Ms. McDonald explained the process for having the ban lifted, which included contacting the "home office." According to Ms. McDonald, if the ban has been lifted, it is removed from the internal system. Ms. McDonald agreed that there is nothing on the notification form that indicates that it lasts indefinitely.

         Defendant elected not to testify but presented the testimony of Ashley Giebudowski, his ex-girlfriend. Ms. Giebudowski had known Defendant since high school and they dated off and on for about a year starting in November 2015. During the time that they were together, they went to several different Walmart stores around Knoxville almost weekly. On those occasions, Defendant would make purchases either using cash or his EBT card with his name on it. Ms. Giebudowski testified that no one ever tried to stop them from entering the store, checked their ID as they entered, or checked their status on the trespass list. Ms. Giebudowski was with Defendant when he was arrested for shoplifting on December 26, 2016. Ms. Giebudowski testified that she was not aware what Defendant was doing that day because she had separated from him once inside the store. Defendant did not tell her what he planned to do, and she was not involved in the theft.

         On cross-examination, Ms. Giebudowski testified that Defendant did not graduate high school, but she believed that he had obtained his GED. Ms. Giebudowski testified that Defendant could read and write and had never had any problems being able to do so. Ms. Giebudowski identified herself on a still photograph from the surveillance footage as the woman entering Walmart with Defendant on December 26, 2016. She testified that Defendant did not enter the store with any merchandise or receipts. When she met up with him in the customer service area, Defendant had a Walmart bag with items in it. Ms. Giebudowski assumed Defendant had gone back to the car to retrieve those items. Ms. Giebudowski did not pay attention to the items Defendant was returning. Defendant appeared calm while standing in the customer service line and did not do anything that made Ms. Giebudowski suspicious. When he was done, Defendant handed her some change to put in her wallet. When they were approached by the loss prevention officer, Defendant told Ms. Giebudowski he had done something and would explain later. Ms. Giebudowski was in the loss prevention office when Defendant admitted stealing items from the store and returning them for a refund. Ms. Giebudowski testified that she was familiar with Defendant's signature and denied that the signature on the notification form was his. Ms. Giebudowski identified Defendant as the person in the picture from Walmart's internal database.

         The jury convicted Defendant as charged of burglary, theft of merchandise, and criminal trespass.

         II. Sentencing Hearing

         The parties agreed that Defendant was a career offender. The State entered into evidence the presentence report as well as a report from the Community Alternatives to Prison Program ("CAPP"). The presentence report indicated that the 36-year-old Defendant had over thirty prior convictions, including eighteen convictions for burglary. It further noted several violations and revocations of probation. The CAPP report found that Defendant was "not appropriate" for community corrections based on his history of offenses in multiple states and counties, probation violations, and failure to appear charges, all of which indicated that Defendant "has a blatant disregard for the law and unwillingness to change." It noted that Defendant had a substance abuse disorder; that he had admitted to using alcohol, various pills, marijuana, heroin, methamphetamine, cocaine, and other drugs; and that his drug of choice was opiates. The State entered into evidence numerous judgments for the prior convictions, including Defendant's prior conviction for theft from the Walmart in Sevierville. Significantly, this conviction, which was part of a plea agreement to a string of burglaries and thefts with a total effective sentence of ten years on probation, included a restraining order for Defendant to stay away from Walmart in addition to the trespass notification he had received from Walmart itself.

         Defendant presented the testimony of his mother, Rhonda Lawson. Ms. Lawson testified that Defendant's life growing up was "pretty chaotic." She and Defendant's father divorced when Defendant was a year old, and Defendant's father "made himself unavailable." Ms. Lawson remarried, but Defendant's stepfather was abusive.

         Defendant's family moved around a lot, so Defendant went to different schools. When Defendant was twelve years old, he began spending time with a group of kids from church. Ms. Lawson found out later that there was a man who would give the group alcohol and molest them. Defendant was also molested by a cousin who was several years older than him. At that point, Defendant started using drugs, and ...

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