Court of Criminal Appeals of Tennessee, Knoxville
Session July 24, 2019
from the Criminal Court for Knox County No. 110461 G. Scott
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.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
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
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.
TIMOTHY L. EASTER, JUDGE.
and Procedural Background
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.
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
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.
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
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."
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.
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.
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.
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.
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.
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.
jury convicted Defendant as charged of burglary, theft of
merchandise, and criminal trespass.
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
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.
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 ...