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State v. Wilson6/16/2005
nn. * 39-13-404. Robbery is defined as (1) the intentional or knowing, (2) theft of property, (3) from the person of another, (4) by violence or putting the person in fear. Id. * 39-13-401(a). Theft is defined as (1) knowingly obtaining or exercising control over property, (2) without the owner's effective consent, and (3) with the intent to deprive the owner of the property. Id. * 39-14-103.
Theft is clearly a lesser included offense of robbery under part (a) of the Burns analysis. See State v. Bowles, 52 S.W.3d 69, 79-80 (Tenn. 2001); State v. Lewis, 36 S.W.3d 88, 99-100 (Tenn. Crim. App. 2000). That is, all of the statutory elements of theft are included within the statutory elements of robbery. See Burns, 6 S.W.3d at 466. It is the use of violence or putting the person in fear that elevates a theft to a robbery. Bowles, 52 S.W.3d at 80. One cannot, then, commit the offense of robbery without also committing the offense of theft. See State v. Allen, 69 S.W.3d 181, 188 (Tenn. 2002) (citing Bowles, 52 S.W.3d at 80).
An "owner" is "a person, other than the defendant, who has possession of . . . property . . . and without whose consent the defendant has no authority to exert control over the property." Tenn. Code Ann. * 39-11-106(26). Thus, the statutory element of taking "from the person of another" is included within both a carjacking offense and a robbery offense.
On the other hand, to "deprive," as used in the definition of a theft offense, means to "(A) withhold property from the owner permanently or for such a period of time as to substantially diminish the value or enjoyment of the property to the owner; (B) withhold property or cause it to be withheld for the purpose of restoring it only upon payment of a reward or other compensation ; or (C) dispose of property or use it or transfer any interest in it under circumstances that make its restoration unlikely." Id. * 39-11-106(8). A carjacking offense does not require proof that the defendant took the vehicle with the intent to "deprive the owner of the property;" it only requires proof that the defendant took property "from the possession of another." Compare Tenn. Code Ann. * 39-14-103 with * 39-13-404(a). The offense of theft, therefore, has a statutory element not included within the statutory elements of the offense of carjacking. Thus, theft cannot be a Burns (a) lesser included offense of carjacking. Because robbery includes all of the elements of theft within its statutory elements, the offense of robbery is also not a lesser included offense of carjacking under part (a) of the Burns analysis.
In order to be considered a Burns part (b) lesser included offense, the additional statutory element must either "establish a different mental state indicating a lesser kind of culpability" or "establish a less serious harm or risk of harm to the person, property or public interest." Burns, 6 S.W.3d at 467. The statutorily defined element, "with intent to deprive the owner of property," does not reflect a lesser kind of culpability than "taking a vehicle from the possession of another," regardless of whether or not the two statutory elements represent "different mental state ." Nor can we conclude that the statutory element, "with the intent to deprive the owner of property," establishes "a less serious harm or risk of harm" to the same property (in this case a motor vehicle) than simply taking possession of the vehicle from another. The offenses of robbery and theft are thus not lesser included offenses of carjacking under part (b) of the Burns analysis.
Therefore, while it is abundantly clear that theft of a vehicle is a much less serious crime than carjacking, this does not make it a lesser included offe
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