Facts: Defendant entered a Walmart store and stole merchandise after she had received notification that she was banned from all Walmart properties. Defendant was convicted at a bench trial of one count of misdemeanor theft and one count of burglary. On appeal, Defendant argued that the burglary conviction should be dismissed because the burglary statute, TCA 39-14-402, does not apply to entry into buildings open to the public.
Appellate Decision: A divided intermediate court held that the burglary statute is not unconstitutionally vague and affirmed the burglary conviction: “Though Walmart and other retail establishments may generally consent to entry by members of the public at large during normal business hours, such consent is clearly revoked when an individual has been notified in writing that they are no longer allowed on the property.”
Judge McMullen dissented, writing: “when an individual, like the Defendant, is charged with burglary, a Class D felony, and fundamental fairness requires that this individual be charged with the misdemeanors of shoplifting and criminal trespass, prosecutors violate procedural due process by abusing their charging discretion and by unilaterally and unreasonably expanding the reach of the burglary statute.”
Review Granted: May 17, 2019. The Supreme Court’s order granting review invited interested parties to file amicus briefs
Prediction: Ben thinks the Supreme Court will affirm for the reasons discussed in the majority opinion. While harsh, the Defendant’s conduct fits within the four corners of the statute. David disagrees; the invitation to enter is implicit thus negating the burglary element. If a “no trespassing” sign is inadequate to keep the police from entering private property, the invitation to enter a store precludes a burglary conviction.