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State v. Mitchell12/20/1999
On May 7, 1998, the appellant, Thomas Mitchell, was convicted by a jury in the Shelby County Criminal Court of burglary of a building, a class D felony. On July 6, 1998, the trial court sentenced the appellant as a Range II multiple offender to an effective sentence of eight years incarceration in the Tennessee Department of Correction.
In this appeal as of right, the appellant presents the following issues for our review:
(I) Whether the evidence is sufficient to sustain the appellant's conviction of burglary of a building;
(II) Whether the trial court erred by failing to instruct the jury on the lesser included offense of attempted burglary of a building;
(III) Whether the trial court erred by refusing to instruct the jury on the possible penalties for the charged offense;
(IV) Whether the trial court erred by imposing a sentence of eight years.
Following a review of the record and the parties' briefs, we affirm the judgment of the trial court.
I. Factual Background
On September 4, 1997, Joseph Poindexter and his partner, both officers with the Memphis Police Department, were dispatched to the Florida Elementary School to investigate a possible burglary in progress. A school board dispatcher reported that the school's alarm system, which was capable of detecting sounds inside the school building, had detected the sound of glass breaking and movement inside the school annex building. The officers arrived on the scene within less than a minute of the dispatcher's call.
When the officers arrived at the scene, they proceeded to the annex building. As they approached the chain-link fence surrounding the school, the officers heard a noise inside the perimeter of the fence, and immediately began climbing over the fence. Officer Poindexter testified that as the officers started over the fence, they heard something like a pipe or metal object fall on the concrete. Once over the fence, Poindexter approached the annex building from the south as his partner approached it from the north. Neither officer observed anyone leave the building. However, as both officers approached the far east side of the annex building, they noticed a pipe on the covered concrete walkway connecting the annex and the main building. Additionally, the officers noticed a hot plate and other items lying near an open window in the annex building.
Because the officers had heard the pipe drop but had not seen anyone during their search, they realized that someone could be hiding on top of the awning covering the walkway. The officers climbed onto the awning where they discovered the appellant, lying approximately ten to fifteen feet away from them. Following a brief struggle, during which time the appellant attempted to flee, the appellant was taken into custody.
After the police placed the appellant in custody, the school dispatcher reported that the alarm system had detected voices in the main school building. The police dispatched a canine unit to investigate the report, but they were unable to locate any other intruders. The officers later concluded that their voices outside the building had triggered the alarm.
Eddie Hartley, a security guard for the Memphis City Schools, also responded to the alarm at the Florida Elementary School. When he arrived, the appellant was in police custody. Hartley recalled that the canine unit searched the building and found no other suspects. Hartley conducted his own investigation and also found the hot plate and other items outside the annex building window. Hartley then conducted a "complete search" of the main building and the annex building
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