Burglary When Defendant Obtains Consent to Enter with Deception

Case:  State of Tennessee v. Marcus Pope

Facts:  The Victim sold candy and snacks out of his residence.  He normally conducted business from a window but allowed Defendant and an accomplice inside because he trusted him and it was hot outside.  Upon entering, Defendant and the accomplice attacked and robbed the Victim.  Defendant was convicted of aggravated robbery and aggravated burglary.

Appellate Decision:  Defendant argued that burglary could not be established where he had been given consent to enter the house.  The CCA relied on its earlier decision in State v. Holland, 860 S.W.2d 53 (Tenn. Crim. App. 1993) to conclude that “effective consent” under the statute cannot be obtained through deception.  Thus, Defendant did not have effective consent here because he created the false impression that he was present to do business rather than rob the victim.

Issue:  Does a defendant commit aggravated burglary when he obtained permission to enter a habitation through deception?

Review Granted:  April 9, 2013.

Prediction:  David thinks the Supreme Court will affirm for the reasons stated in the CCA’s opinion.  Ben disagrees:  since no property owner would ever give consent for their property to be robbed, the CCA’s interpretation could render the “consent” aspect of the statute meaningless in most situations.

ABOUT David Raybin
David Raybin

David Raybin is a partner at Raybin & Weissman and he heads up the criminal defense section of the firm. With more than 35 years of experience, David has been named the Best Criminal Lawyer in Nashville by Best Lawyers in America, and listed among the Best Criminal Lawyers in the state by Tennessee Business magazine.

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