Tennessee Criminal Lawyer Blog

A would-be burglar got more than he bargained for last September when he broke into a home shared by several Johns Hopkins University Students. Apparently the students had heard him come into the house and four of them confronted him in the garage, one of whom was somehow armed with a samurai sword. The students, who had contacted authorities, were attempting to hold the burglar in the garage until police arrived when the burglar reportedly lunged at the student who was holding the sword. In a seeming self-defense effort, the student swung the sword at the burglar, severing the burglar’s left hand completely and cutting the man’s upper body. The burglar died from his injuries. Controversy surrounded the case concerning whether or not the student should face criminal charges. As of this writing, he has not been formally charged in connection with the incident.

One important point to be taken from this situation is that it is not wise to break into the homes of ninjas. On a more serious note, this case illustrates how fine the line can be between murder and self-defense. In Tennessee, a person has the right to use a reasonable amount of force against another to prevent the suffering of death or bodily harm. Thus, the factors that would be considered in charging the individual in Tennessee would be whether the burglar could reasonably have been thought to have presented a risk of serious bodily injury or death to the students and whether the use of the sword in self-defense was a reasonable use of force. Considering that the burglar was reportedly lunging at the student holding the sword in what may have been an attempt to obtain control of the weapon, the student may have been justified in using that sword to defend himself from that risk. Whether or not this situation weighs more toward self-defense or homicide charges will ultimately rest with the discretion of the prosecutor.

Source: http://www.cnn.com/2009/CRIME/09/15/samurai.sword.killing/index.html

DNA evidence is a critical component of some criminal investigations, and it is an essential component of most criminal investigations that take place on many popular network television shows. The acquisition of DNA evidence is often key in many criminal cases because the composition of the DNA in an individual is a combination of the DNA of that individual’s parents, and, unless that person has an identical twin, his or her DNA is unique. Thus, DNA evidence has been used not only to prove that persons were guilty of crimes but also that many individuals who were wrongly convicted in the past were actually innocent all along. Despite the advances DNA technology has offered to the world of criminal investigation, it is often not a foolproof method for determining whether someone committed a crime. The Tennessee Supreme Court has a case on its upcoming docket in which it will hear an issue regarding the strength of DNA evidence.

In the upcoming case styled State v. Lewter, the Tennessee Supreme Court will decide if the evidence was sufficient to convict the defendant of burglary and theft where the only evidence linking the defendant to the offense was a shirt that was left behind which contained skin cells matching the defendant’s DNA. The defendant was obviously convicted of the offenses based on this evidence at the trial court level or he would not have appealed. On appeal, the intermediate appellate court ruled that DNA is not like a fingerprint or blood sample in that its presence alone cannot prove that the defendant was present at the time of the theft and overturned the conviction. The Tennessee Court of Criminal Appeals agreed, and the case now comes before the state’s highest court.

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Few things are more annoying in life than when you go to all the trouble to break into a house so you can have a nice shower and then the residents come home early and ruin it. A man from Clearwater, Florida found himself in this situation recently, and when asked by the residents what he was doing in the home, the man gave the first reasonable answer that popped into his head: President Obama let him in. Presidents generally get a lot of blame and credit for things that are not their fault, but it is highly unlikely that President Obama makes a habit of going around letting burglars into peoples’ homes, especially considering that he has had security issues to worry about at his own home as of late. The wisecracks didn’t stop there, however; the man seemingly fancied himself somewhat of a stand-up comedian, telling police that “the Yellow Brick Road brought him to Crestview.” Hilarity ensued.

Burglary in Tennessee of a habitation is considered aggravated burglary and is a Class C felony, punishable by up to fifteen years in prison and a fine not to exceed $10,000. A “habitation” under Tennessee law is basically any building that is designed or adapted to provide overnight accommodations for a person.

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One of the biggest keys to orchestrating a proper burglary would seem to be having a good disguise. For example, a burglar may wear a Bill Clinton mask while breaking into a house in order to pin the crime on the former president rather than themselves. Almost anything can be used to hide a face during a criminal activity, and almost anything has, including ski masks, underwear, paper bags, and cardboard boxes. The most important characteristics of a good disguise are twofold. First, it is important that the disguise makes it so that people cannot recognize you (hence the “disguise” element). Second, it must be easy to dispose of after the commission of the crime to avoid leaving a trail of evidence. Two clever criminals from Iowa recently neglected these two important factors in coming up with their disguise, facilitating their arrest for burglary.

The expression, “It’s written all over your face,” is often used to describe someone who looks guilty or whose face gives away the truth in some fashion. This phrase has taken on new meaning after the two burglars mentioned above decided to disguise themselves during a burglary attempt by coloring their faces with permanent markers. Shockingly, this disguise proved ineffective. Not only did the permanent marker fail to hide their facial features, but the burglars were more than likely the only two people riding around town with permanent marker all over their faces. Such a disguise clearly fails both of the important disguise-choosing criteria discussed above and was woefully ineffective at helping the criminals evade authorities. Police pulled over a car matching the description given by the victims some time after the burglary, saw the two men sitting inside with marker all over their faces, and arrested them. They were charged with burglary.

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Using what may possibly be the worst disguise of all time, none at all, a naked man apparently under the influence of drugs or alcohol broke into a residence in Slidell, Louisiana and made himself at home for a while before eventually leaving. According to the Associated Press, the bare-naked burglar was captured on a surveillance camera taking a shower via a garden hose before breaking several windows and then entering the house. After ransacking the house, the man cooked and ate a full meal, had a few drinks, took another shower (this time inside the home), wrapped himself in a bed sheet, and then exited the home. The police are still looking for the suspect, who will presumably have clothed himself by the time this blog is posted.

Although this is an amusing manner in which to perpetrate a crime, burglary is a serious offense in Tennessee. Burglary in Tennessee of a habitation is considered aggravated burglary and is a Class C felony, punishable by up to fifteen years in prison and a fine not to exceed $10,000. A “habitation” under Tennessee law is basically any building that is designed or adapted to provide overnight accommodations for a person.

The entering of a building or dwelling only constitute a “burglary” as defined by Tennessee law where the offender does one of the following without the consent of the property owner:

1. Enters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault;


2. Remains concealed, with the intent to commit a felony, theft or assault, in a building;


3. Enters a building and commits or attempts to commit a felony, theft or assault; or


4. Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault.

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According to the Knoxville Police Department, there were 109 home invasion robberies last year within the Knoxville city limits. There have already been 60 home-invasion robberies since January of this year.

The KPD insists that these numbers don’t mean that there is an epidemic of violent robberies in Knoxville. A spokesman for the KPD indicated that, since 2003, only 3 people have died and “several others” have been injured during the course of a home invasion.

He also indicated that most home invasions are usually fueled by the illegal drug trade. “In nearly every single incident, the facts of the investigation have indicated that there had been some kind of prior [illicit] business dealing between the suspects and the victims, or that it was family related. It’s very rare to have a complete stranger home invasion.”

Nevertheless, homeowners and tenants in Tennessee generally have the right to defend themselves against home invaders.

Under Tennessee law, a person can use deadly force to protect against someone who unlawfully and forcibly enters his or her home, without having the duty to retreat, if he or she has a reasonable belief that there is imminent danger of death or serious bodily injury. (The danger creating the belief of imminent bodily injury must also be real or honestly believed to be real at the time of the invasion, and the belief of danger must be founded upon reasonable grounds.)

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If race or ethnicity is a factor in determining the target of a Tennessee theft crime, the state may well “throw the book” at the defendant by arguing for sentence enhancement and alleging a civil rights intimidation offense. The facts of the case, State v. Lamar, provide an illustration.

On May 23, 2007, in Hamilton County, Franklin Lamar (defendant) and two others hatched a plan to rob a single Hispanic woman who lived down the road from where the defendant lived. According to Mr. Lamar’s testimony, he and an accomplice were “talking about these little Mexicans up the street…[and] that they be having a lot of money on them whatever.” They walked up to the woman’s home, pushed in the door, and stole the victim’s piggy bank containing approximately $100 in change. A detective said that it was common for Hispanic people to be specifically targeted for robbery in Hamilton County.

Mr. Lamar was caught hiding in a trash can, charged with robbery and civil rights intimidation, and subsequently convicted. At the sentencing hearing, the trial judge rejected alternative sentencing, which would have limited the defendant’s sentence to probation. Instead, the court enhanced the defendant’s sentence upon a finding that he specifically targeted an ethnic group for the commission of robbery. Consequently, Mr. Lamar received four years in prison for the robbery conviction and two years to be served concurrently with his civil rights intimidation conviction.

State v. Lamar illustrates how a judge can enhance the defendant’s sentence based on who he selects as a victim and the reasons for that selection. Under T.C.A. § 40-35-114(17), if appropriate for the offense and if not already an essential element of the offense, the court is required to consider as a sentence enhancement factor whether the defendant selected the victim because of the defendant's belief or perception regarding race or ethnicity. Since victim selection based on race or ethnicity is not an element of a theft offense in Tennessee, the judge had the power to increase Mr. Lamar’s sentence.

State v. Lamar also shows how racial targeting is a stand-alone crime in Tennessee pursuant to T.C.A. § 39-17-309. This law makes it a felony to injure or coerce another person with the intent to intimidate another from the free exercise or enjoyment of any right or privilege secured by the constitution or laws of the state of Tennessee. The rights considered in this law are the rights to be free from fear, intimidation, harassment and bodily injury caused by the activities of groups and individuals.

If you have been charged with a criminal civil rights violation and/or robbery in Tennessee, don’t settle for inexperience; call the skilled and experienced Knoxville criminal defense attorneys at Baker Associates for a free and thorough consultation.

Damage to personal property is often thought of as a cause of action in civil litigation. If someone destroys property, they should have to pay for it. But what about the criminal side of it? Can criminal sanctions be brought against someone who destroys property? Under certain conditions: yes. TCA § 39-14-408 lays out the standards for criminal vandalism.

Under TCA § 39-14-408, a person may be charged with criminal vandalism if they knowingly or intentionally damage the personal or real property of another. “Another” can mean a private individual, the state, the United States, or a city or town. The person against whom the vandalism occurs in not important; the important factor in vandalism cases is that this destruction takes place when the accused knows that they do not have the owner’s effective consent to damage or destroy the property. Therefore, negligent or reckless damage to the property of another will likely not rise to the level of vandalism. The statute is clear that the accused must either knowingly or intentionally caused the damage without the owner’s consent.

The damage caused may include destroying, polluting, or contaminating property, or tampering with the property in such a way as to cause pecuniary loss or substantial inconvenience to the owner or a third party.

Often times, vandalism charges may be compounded with a number of other charges, including trespass and burglary. The trespass and burglary charges in Tennessee will relate to the entry on the property, while the vandalism charge will relate to the actual damage caused.

If convicted of vandalism, the punishment is the same as that for theft (TCA § 39-14-105). If the value of the damage is less than $500, it will be a Class A misdemeanor; $500-$1,000 is a Class E felony; $1,000-$10,000 is a Class D felony; $10,000-$60,000 is a Class C felony; and more than $60,000 is a class B felony.

If you are facing any of the charges mentioned above, then it may be in your best interest to contact a skilled Pigeon Forge criminal defense attorney. Call Baker Associates today for a free evaluation.

Tennessee’s modern burglary statute, TCA § 39-14-402, was amended in 1995, and represents a significant change from the previous burglary statute. Among the changes that took place in 1995 were the elimination of degrees of burglary and the distinction between night and day that was used to determine the gradation of the offense. This distinction was eliminated because the legislature determined that the risks involved were the same whether the act occurred during night or day.

Currently, a person facing burglary charges in Tennessee who, without consent of the property owner, commits one of four acts. First, a person commits burglary when entering a building other than a habitation, not open to the public, with intent to commit a felony, theft, or assault. Under this section, “habitation” means any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons. Thus, burglary is committed for entering any building that is not used to accommodate persons overnight.

Second, a person commits burglary when remaining concealed, with the intent to commit a felony, theft, or assault, in a building. Third, a person commits burglary who enters a building and commits or attempts to commit a felony, theft, or assault. The burglary charge would be in addition to any charge for the felony, theft, or assault, thus resulting in more severe Tennessee criminal charges for the accused to face.

Fourth, a person commits burglary who enters any train, automobile, truck, trailer, boat, airplane or other motor vehicle with the intent to commit a felony, theft, or assault or commits or attempts to commit a felony, theft or assault. This charge would also be in addition to any charge for actually committing the offense.

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