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Appellate panel hears challenge over whether Westtown Mall entry qualified as burglary
Summary
At oral argument in State v. Elliot Ares, defense lawyers argued the state presented insufficient proof that entry into a Dillard's at Westtown Mall was burglary because the mall is not a 'habitation' and the prosecutor did not prove an authorized owner or agent had denied consent; the state pointed to video and security testimony. The court took the case under advisement.
A judicial panel heard oral argument in State of Tennessee v. Elliot Ares over whether the defendant’s entry into a Dillard’s at Westtown Mall met the statutory definition of burglary and whether the state proved an authorized owner or agent had denied the defendant effective consent.
Defense counsel, who identified himself in court as Jonathan Parwell, told the judges he would “spend the majority of my argument on issues permission” and pressed the court to require clearer proof that the mall was a habitation or that the particular store had denied consent. Parwell said the state’s case focused on the mall as a whole instead of whether the tenant store (Dillard’s) had the authority or had denied consent where the defendant was found.
Prosecutor Courtney responded that the record contains video showing the defendant entering Dillard’s, standing behind a clothing rack and “shielding himself with one shirt while he stuffs a colored shirt down his pants,” and that the state introduced testimony from Cassidy Hajj of Allied Universal about the mall’s ban practice. The prosecutor told the court the video and witness testimony support a reasonable jury’s decision.
Judges pressed both sides on statutory interpretation and evidentiary proof. The bench repeatedly questioned whether a mixed‑use or large retail property should be treated as a habitation for burglary purposes if some portions can be used overnight (for example, a security room or stockroom). The court also asked whether the state had authenticated documentary evidence or testimony showing Allied Universal had contract authority from Westtown Mall to issue mall‑wide bans, rather than relying solely on a single security employee’s explanation of how the ban practice operated.
The prosecutor said the record includes a Westtown Mall code of conduct and testimony describing the practice in which stores report suspected shoplifting and Allied Universal issues a ban; she argued that under the sufficiency‑of‑the‑evidence standard, a jury could reasonably infer authority from that record. Defense counsel countered that unanswered questions — missing supervisor testimony and unproduced service or lease agreements — create reasonable doubt about whether the security employee had authority sufficient to convert a prior shoplifting incident into a mall‑wide barment that would support burglary.
The court did not rule from the bench. After extended questioning and rebuttal, the panel said it would take the matter under advisement and issue a written decision.
Next step: the court will issue a written opinion resolving whether the record supported a burglary conviction based on the prosecution’s proof about habitation and effective consent.
