The legal memorandum analyzes three issues regarding whether Johnny Walker committed burglary. For issue one, entering the garage with permission to get alcohol, the summary concludes it does not meet the definition of burglary. For issue two, entering the unlocked vehicle with intent to steal a chain, the summary concludes it likely meets the definition. For issue three on whether alcohol consumption mitigates details, the summary says case law provides it is not a defense but may help poke holes in the prosecution's case.

1. OFFICE LEGAL MEMORANDUM
To: Crystal D. Wilkerson, Attorney
From: Eric Sutton, Paralegal
Date: 3/25/16
RE: Johnny Walker charged with burglary.
ISSUE:
Issue one: Did a burglary occur if our client had permission to enter the garage by the
owner to obtain more alcohol and in the process took a gold necklace near the alcohol in the
garage?
Issue 2: Did a burglary of occur when the client entered the vehicle and did not steal the
gold chain?
Issue 3: Did the consumption of alcohol mitigate any details of this case?
The above issues are the reasons why our client has been indicted for burglary in the third
degree.
BRIEF ANSWER:
No, a burglary did not occur in the first issue. The definition of a third degree burglary is
breaking and entering into a business house, outhouse, or any other house of another, other than
a dwelling house, with the intent to commit a felony. The following four distinct elements must
be proved by the State: 1) the breach 2) the entry 3) any house of another other than a dwelling
house, and 4) felonious intent. Yes, Johnny broke a pane of glass to gain entry into the garage,
but he had permission to enter the building. There might be other charges that could be proven
here: conversion and breaking and entering, but these were not charged.

2. Yes, a burglary occurred in the second instance of burglary because he did not have
permission to enter the truck, he entered the truck, and he had intent to steal the gold chain. He
also already took the gold necklace from the garage.
There is not enough information to decide whether or not the alcohol question would be
answered, but in Mellons v Tennessee the alcohol consumption was not relevant because the
client was able to hotwire a vehicle and was shown to be able to have enough dexterity to
accomplish this goal.
Statement of Facts:
Jack, Johnny’s friend, gave our client permission to enter the garage for more alcohol.
Johnny broke the window to unlock the garage door because the door was locked. Johnny took a
gold necklace without permission. These facts do not support burglary. After, exiting the garage
Johnny opened an unlocked truck in Jack’s driveway in order to take another gold chain. Johnny
decided not to take the gold chain. While in the truck, Jack questioned Johnny for his proximity
to the new truck. Johnny went home. Jack had Johnny arrested because of the broken window
and the missing necklace from the garage.
ANALYSIS:
Tenn. Stat. 39-14-402, Duchac v Tennessee 560 S.W. 2d. 634 1974. & Melons v
Tennessee, 560 S.W. 2d 634 (Crim. App. 1977. For burglary the state needs to prove that the
defendant broke into and entered a business, house, outhouse, or any other house of another other
than dwelling house, with the intent to commit a felony. The state must prove these four
elements: 1) the breach 2) the entry 3) any house of another other than dwelling house, and 4)
felonious intent.

3. Issue one: The main case within this portion would be Duchac v Tennessee 560 S.W. 2d.
634 1974. Defendants entered a bottling company and were seen inside the building. A pane of
glass was broken and the door was unlocked from the inside. Different stuff was moved within
the business house. A cutting torch, pry bar, and a flashlight were found within the business and
all items were not claimed by the company and the items were found at the scene. This case
confirmed that both a burglary and a use of tools could be used to convict for burglary in the
third degree and of carrying these items. In Duchac, the defendants illegally entered the business
by breaking a pane of glass and did not have permission, and they were convicted of intent
without actually stealing something because of the different burglarious tools that were found at
the scene and this was sufficient circumstantial evidence to warrant a conviction. Although
Johnny broke a pane of glass to enter into the garage, Jack gave Johnny permission to enter the
garage. Yes, there was a breach, but because Jack gave Johnny permission to enter the garage he
did not illegally enter it. Johnny also did not have intent to steal the gold necklace because he
did not know it was present. Although, our client had permission to enter into the garage to
obtain more alcohol he did not have permission to break the pane of glass to enter the garage, nor
did Johnny have permission to take the gold necklace. Could criminal intent be established
while he is in the garage? Maybe, but the case law doesn’t answer that question and the fact that
he had permission to enter the garage does not equal the State being able to prove all of the
elements therefore there was no burglary in this case. Further using Duchac there would not be
double jeopardy concerns for issue two because there would be different facts used for that
possible conviction. This is how a second charge of burglary can be pursued in this case.
Issue two: Melons v Tennessee, 560 S.W. 2d 634 (Crim. App. 1977). Defendant was
convicted of burglary of a vehicle. Officer saw steam being omitted from the vehicle. When the

4. officer approached there was no more steam. Vehicle was previously locked and dash appeared
pried open, starter switch was affected and wires were hanging out of the dash. Due to the
circumstantial evidence found at the scene a burglary of a vehicle can be inferred from the
circumstantial evidence. Duchac could also be used in this issue because the truck was
stationary and no attempt to steal the vehicle was mentioned within the fact pattern. It could be
argued as a dwelling within the property. The breach occurred when Johnny opened the vehicle
and he entered the vehicle. He did not have permission to enter the truck and he originally
entered the truck to take another gold chain. However, Johnny did not take the gold chain
because he already had the gold necklace from the garage. Therefore it can be argued using the
elements of third degree burglary that he breached the door, although it was unlocked, he entered
the truck, he was in the truck, and he intended to take the gold chain and because he did not take
it does not change that he entered the vehicle to take the chain. However, although he did not
have permission to enter the truck, the truck was unlocked which differs with both Mellons and
Duchack because in both cases the truck was locked and so was the business. It is also possible
that there might have been more alcohol in the truck and he was confirming whether more
alcohol was present in the truck because both parties were drunk. A reasonable person may
assume that Jack forget that there was more alcohol present within the truck and they too would
check the truck because Jack was intoxicated. Johnny did not turn on the vehicle so it would be
difficult to argue that he attempted to steal the truck. Although he initially entered the truck to
steal the gold chain, he changed his mind during the middle of the action and exited the vehicle
on his own accord without the chain. In both cases the theft was prevented due to police
intervention. This differs with this case because Johnny decided not to take the chain from the
truck on his own accord.

5. Issue three: Involves the consumption of alcohol and whether that mitigates either case.
During Mellons it was argued that because the defendant had enough dexterity to hot wire the
truck he was not drunk enough for it to fully dull the sense of right and wrong. In this case was
Johnny coherent enough to control his actions? This could go either way, but would the State
argue that because he was able to break the pane of glass to enter into the garage and had enough
morals not to steal the chain in the truck, he was coherent enough to function. Ultimately,
alcohol consumption is not a defense for any crime, especially if he willfully consumed alcohol,
but it may help to poke holes in the State’s case, especially regarding intent.
CONCLUSION:
With regards towards issue one, Johnny had permission to enter the garage. The
prosecution does not fulfill its criteria here due to Johnny having permission to enter. Although
the state may be able to argue that the elements were met due to different circumstances they
would fail because a core element of all burglary cases is that the defendant does not have
permission to be in the property.
Regarding issue two, Johnny did commit a burglary because he entered the truck without
permission, had intent to steal the chain. But he didn’t. Would try and plea for a lesser crime.
There might be ways to mitigate this issue with using different arguments present within the
counter-analysis. May want to see what the prosecution has with regards towards evidence
within this part of the case.