Supreme Court Concludes Burglary Statute Applies To Banned Walmart Shoplifter

The Tennessee Supreme Court has clarified that the language of Tennessee’s burglary statute allows its application to a criminal defendant who enters a retail store from which the defendant has been previously banned and commits a theft. 
 
The defendant, Abbie Leann Welch, was indicted for misdemeanor theft and burglary, a Class D felony, for her involvement in a scheme to enter a Walmart retail store, steal merchandise, and have another individual return the merchandise for a gift card.  Evidence at trial showed that the defendant previously had been banned from Walmart retail stores for prior acts of shoplifting.  The State reasoned that entering Walmart after being banned by letter was equivalent to entering the store without the effective consent of the owner and, therefore, sought an indictment for burglary rather than criminal trespass.  Prior to trial, the defendant filed a motion to dismiss the burglary charge, asserting that the burglary statute was unconstitutionally vague as applied.  The trial court denied the motion, and the defendant was convicted as charged at the conclusion of her 2017 bench trial.  
 
The defendant appealed to the Tennessee Court of Criminal Appeals, which affirmed her conviction in a divided opinion.  The Supreme Court granted the defendant permission to appeal to consider the propriety of the defendant’s burglary conviction.  
 
In its opinion, the Supreme Court affirmed the judgment of the Court of Criminal Appeals.  Four justices concluded that the plain language of the burglary statute, Tennessee Code Annotated section 39-14-402(a)(3), is clear and unambiguous and that the burglary statute is properly applied to defendants who enter a store without the effective consent of the owner and therein commit a theft.  The Court further concluded that the application of the burglary statute in these circumstances does not violate due process or prosecutorial discretion.  Justice Holly Kirby agreed that the burglary conviction should be upheld but determined that the statute is not unambiguous.  She opined that because the burglary statute was not applied in this manner until 2015, the alternative interpretation advocated by the defendant is not unreasonable.

To read the majority opinion in State of Tennessee v.