On February 19, 2020, the Tennessee Supreme Court upheld a Burglary conviction involving a shoplifter previously banned from a retailer’s premises. For retail entities, the decision provides some incentive to better document and track those banned from their locations for unlawful or disruptive activity. For those persons previously banned, this decision should serve as a warning that revisiting those locations for even petty theft, could result in a felony charge.
On the front end, an orientation as to the applicable law might be helpful. Typically, a retailer or merchant location is open to the public for purposes of conducting that business. However, a premises holder may revoke that implied invitation, and instruct that person to not come about their premises. Most large retailers use some form written form or letter, that advises the person that they are no longer allowed on the property for any reason. A person re-entering the property against the instruction is then trespassing. Without getting incredibly specific as to the law of trespass, penalties in Tennessee can range from 30 days incarceration for Simple Trespass (a Class C Misdemeanor), up to six months incarceration for an Aggravated Criminal Trespass, which is a B Misdemeanor (A Misdemeanor for schools, residences, and hospitals, which would yield a sentence of up to 11 Months and 29 Days in jail).
In terms of theft, Tennessee grades theft by dollar amount of the property taken, with up to $1000 constituting an A Misdemeanor (up to 11/29 sentence). In Tennessee, theft is an expansive term that encompasses, among other things, shoplifting, possession of stolen property, fraud, theft by deception and the like. Most unlawful acts occurring at retail locations, present as some form of theft.
Burglary, on the other hand, is a blending of the two offenses under certain circumstances. Burglary involves intrusion into a structure or habitation (house) for purposes of committing another offense, in this case, theft. Automobiles are also included in the statute, but cars are not applicable to the present case. Burglary to a residence (habitation) is an aggravated offense and carries a greater penalty. A retail establishment does not qualify as a habitation, but according to the Tennessee Supreme Court, it can qualify as a structure under the burglary statute. The import of this being that a person charged with Burglary commits a Class D Felony, with a range of punishment of 2-12 years in jail, depending upon one’s prior felony history. This makes a huge difference.
Facts of This Case
In State of Tennessee v. Abby Leann Welch, E2018-00240-SC-Rll-CD, (Tenn. 2020), the Tennessee Supreme Court provided following facts, which I have further summarized below:
In 2015, the defendant and a two companions drove to a large big-box retailer. The defendant advised her two companions that she intended to enter the store for the purpose of stealing merchandise, which she would then bring out to their vehicle. Thereafter, one of the other girls was then to enter the store herself, and “return” the items in exchange for gift cards. The defendant did enter the store and placed certain items in her purse. The defendant then exited the store without paying for the merchandise. One of the other women then then obtained the stolen merchandise from defendant in the parking lot, and herself entered the store to attempt a return and refund.
Unbeknownst to any of the women, a loss prevention associate observed the defendant quickly leave the store, with a large purse that appeared to be full of merchandise. To confirm his suspicions, the associate checked video surveillance, and observed the defendant and her companions outside the store. The associate then reviewed in store camera footage that revealed the defendant removing and placing items of merchandise in her purse. Focus then shifted to the outside cameras, where loss prevention observed the defendant returning to a vehicle, where she sat with two other female occupants. Finally, associates observed two of the occupants leave the vehicle and return towards the store with a bag of merchandise. The defendant circled the parking lot in the vehicle as the companions went inside the store.
Loss prevention intercepted the two companions as they were leaving the service desk area, after having received refunds for the “returned” merchandise. The retail associate recalled the defendant as having been previously banned from the property for a prior shoplifting episode. Police were called. The companions received citations, but the defendant was arrested. While the charges initially involved theft and criminal trespass, the State sought indictment for Burglary, as “entering [retailer] after being ‘trespassed’ was equivalent to entering the store without the effective consent of the owner” for purposes of committing a theft. The defendant was convicted of both theft and burglary and sentenced to an effective 6 year sentence (6 years for burglary, 11 Months and 29 Days concurrent on the Misdemeanor). For reader clarification, the burglary relates to the unlawful entry of the business. The theft is a separate offense relating to depriving the owner of property, which is why the defendant had two convictions arising out of the same event. Concurrent means that both sentences run at the same time, for one effective sentence. In lay terms, the defendant received a six-year sentence for shoplifting from a location she was banned from.
Law and Application
The defendant appealed to the intermediate appellate court, raising issue with the application of the burglary statute to shoplifting. Specifically, defendant alleged that the burglary statute itself was unconstitutionally vague as applied. From a practical standpoint, one can appreciate this argument as the term “burglary” gives rise to an image of a person with a flashlight and mask, sneaking through a window at night, to steal things. However, the statute is more broadly worded.
The relevant provision of the burglary statute applied here, provides for: “an offense where …[a] person …. who, without the effective consent of the property owner, enters a building and commits or attempts to commit a felony, theft or assault.” (Tenn. Code Ann. §39-14-402(a)(3)).
The Court of Criminal Appeals was divided on the issue. The majority opinion provided “[T]he statute is clear that when a person enters any building that is not a habitation, including one that is otherwise open to the public, without the effective consent of the owner, and commits or attempts to commit a felony, theft or assault therein, they may be charged with burglary.” Further, “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.” (citing State v. Welch, E2018-00240-CCA-R3-CD (Tenn. Cr.App. 2019). The dissent, referencing the Model Penal Code , noted that the “continued survival of the offense of burglary reflected a considered judgment that especially severe sanctions are appropriate for criminal invasion of premises under circumstances likely to terrorize occupants [and that] application of the burglary statute to shoplifting cases runs counter to the time honored belief that burglary is intended to punish wrongful entry.” ( Welch, infra).
The Tennessee Supreme Court upheld the conviction relying upon the simple language of the statute. The argument in application arose over a separate provision of the statute’s application to a building “not open to the public,” which is not consistently stated throughout the statute (see TCA 39-14-402(a)(1). The defense also argued that the legislature did not intent to punish shoplifters as burglars. In support of this assertion, they argued the Tennessee legislature enacted legislation specifically aimed at shoplifting, increasing penalties for those convicted of a fifth offense in a two-year time period, a modest amount. Further, the legislature also increased the theft statute minimums for felony theft, from $500 to over $1000. Considering these two things, the defense argued that the legislature evidenced intent to not exacerbate the penalty for shoplifting type offenses by inclusion within the burglary statute. However, the Court rejected these arguments and agreed with the State’s position that “Anybody with common intelligence can understand the plain language of section (a)(3) that if she has been told she does not have consent to enter a store, but she enters anyway and commits a theft, she will have committed burglary.” (Id). The Court’s opinion noted that: “the burglary statute has been in effect since 1989, yet prosecution of persons under the burglary statute of persons who shoplift after having been banned from a retail establishment for previously shoplifting, did not begin until 2015….[S]ince 2015, while there have been other prosecutions from other retailers, the retailer implicated in the current case has had involvement in over 500 similar prosecutions.” (Id at FN 8). Finally, the Supreme Court observed that the first such instance of this type of application of the burglary statute, was affirmed by the Court of Criminal Appeals in 2018. If the legislature had intended to not include Burglary as a possible offense to shoplifting, the legislature could have previously amended the burglary statute to so reflect.
Undoubtedly, retail theft creates a notable economic impact both upon retailers and consumers. Theft deterrence methods have improved greatly, as have the costs of such measures. The expenses incurred by the retailer are, by necessity, passed on to the consumer, resulting in higher prices for goods. The practice of using written revocation of consent forms (“ban letters”) began as an incentive to encourage offenders to stay away, by paving the way for additional criminal charges, notably trespass offenses. However, such revocations of consent can now also be used to open the door for more severe criminal penalties, often in ways unimagined by the average person. This case should be a warning to any person served with any kind of banishment or trespass notice, that re-entry in violation of that ban could result in more severe charges should that person engage in nefarious activities. In theory, any theft, assault or other felony committed at a banned location, would fall under the same rationale. Hotels, apartment complexes, taverns and restaurants occasionally encounter theft and assaultive offenses on their premises, sometimes with repeat offenders. Use of trespass letters could be an effective tool for mitigating those repeat offenders, via enhanced penalties and punishment. On the other end of the spectrum, anyone with notice that their presence upon a property is forbidden, should pay double heed to such prohibition, or risk significantly higher penalties associated with a violation of that command.