IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
(HEARD AT KINGSPORT) FILED
April 27, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
FOR PUBLICATION
Filed: April 27, 1998
STATE OF TENNESSEE, )
)
APPELLEE, ) SEVIER CRIMINAL
)
v. ) Hon. Rex Henry Ogle, Judge
)
BARBARA BYRD, ) No. 03S01-9705-CR-00057
)
APPELLANT. )
FOR APPELLANT: FOR APPELLEE:
EDWARD C. MILLER JOHN KNOX WALKUP
PUBLIC DEFENDER ATTORNEY GENERAL AND REPORTER
DANDRIDGE
MICHAEL J. FAHEY II
ASSISTANT ATTORNEY GENERAL
NASHVILLE
OPINION
COURT OF CRIMINAL APPEALS AFFIRMED HOLDER, J.
OPINION
We granted this appeal to address the validity of an indictment that
aggregates, under Tenn. Code Ann. § 39-14-103, the value of stolen property
belonging to different owners. 1 We hold that aggregation of value is permissible
under § 39-14-103 when a defendant simultaneously exercises possession or
control over stolen property belonging to different owners.
BACKGROUND
This case involves the theft of $ 2,644.92 in merchandise taken from nine
separate merchants located in the Pigeon Forge area. The defendant, Barbara
Ann Byrd, and three other individuals, Robbie Poole, Janie Carlton and Richard
Devon Ewing, embarked on a journey to Pigeon Forge during which they
planned to systematically steal merchandise from various stores. The four
traveled to Pigeon Forge in a gray 1976 Oldsmobile Delta 88 that belonged to
Ewing's father. Poole testified that he, the defendant, Carlton and Ewing had
devised a scheme for stealing merchandise. Once they entered a store, two of
the four would distract the sales staff while the other two placed merchandise
into a shopping bag. They would leave the store without paying for the
merchandise. The stolen merchandise was then placed into the trunk of the
Delta 88. The foursome implemented this strategy at nine different stores.
The authorities apprehended the foursome and recovered $ 2,644.92 in
stolen merchandise from the Delta 88. The defendant was indicted and
subsequently convicted for theft of property over $ 1,000.00. She raised several
1
Oral argument was heard in this case on November 21, 1997, in Kingsport, Sullivan
Coun ty, Tenne ssee, a s part of th is Court’s S.C.A.L .E.S. (Supreme Court Advancing Legal
Education for Students ) project.
2
issues on appeal to the Court of Criminal Appeals. In one issue, she challenged
the indictment as duplicitous and argued that she should have been charged with
nine separate offenses because the stolen property was taken from nine
different owners. 2 The Court of Criminal Appeals held that the prosecutor acted
properly within his discretion in charging one count of theft over $ 1,000.00 under
Tenn. Code Ann. § 39-14-103. We agree.
ANALYSIS
The defendant raises a single narrow issue before this Court: "Whether
the trial court erred in failing to dismiss the indictment due to the fact that
numerous separate counts of theft were aggregated in a single count of an
indictment?" Since the 1989 Criminal Reform Act revisions and codification of
Tenn. Code Ann. § 39-14-103, this Court has not addressed the viability of
indictments aggregating the value of stolen property. 3
Aggregation of separate thefts is generally permissible where separate
larcenous acts are: (1) from the same owner[s]; (2) from the same location; and
2
The ind ictmen t read, in pe rtinent part:
[The defendant] did unlawfully, feloniously and knowingly obtain or exercise
control over the following property: One (1) purse, the property of Banner House,
Inc.; cologne and other property, owned by Prestige Fragrance; Two watches,
owned by Swan k; Clothe s, owne d by J. Cre w, Inc.; clothe s owne d by the Clo set,
Inc.; one (1) Jacket, the property of Woolrich Factory Outlet, Inc.; miscellaneous
property, ow ned by C hristm as & G ifts, Inc.; clothe s owne d by Galt S ands, Inc .;
Blankets, owned by the Gift Gallery, Inc., in all the aforesaid property having an
aggregate value in excess of $ 1,000.00, the said defendant having obtained or
exercis ed con trol over the property w ithout the ef fective co nsent o f the prop erty
owner, a nd with the intent to dep rive the afo resaid ow ner of the ir property, . . .
3
The fo llowing cas es have addres sed sim ilar issues u nder the prior statuto ry schem e:
State v. Goins, 705 S.W .2d 648 (Tenn. 1986) (interpreting Tenn. C ode Ann. § 39-3-1112 );
W illiams v. Sta te, 390 S.W .2d 234 ( Tenn . 1956) (a ddress ing Ten n. Code Ann. § 39 -4217); Nelson
v. Gann, 344 S.W.2d 540 (Tenn. 1960) (deciding embezzlement issue under Tenn. Code Ann.
§ 39-42 28); State v. O'G uin, 641 S.W.2d 894 (Tenn. Cr. App. 1982) (concerning Tenn. Code Ann.
§ 39-42 24); Shell v. State , 584 S.W.2d 231 (Tenn. Crim. App. 1979) (aggregating under Tenn.
Code Ann. § 39-4225). While these cases are instructive, they are not binding on the narrow
issue of whether the indictment now before us improperly aggregated thefts under Tenn. Code
Ann. § 39-13-103 (Re pl. 1991).
3
(3) pursuant to a continuing criminal impulse or a single sustained larcenous
scheme. See generally, Nelson v. State, 344 S.W.2d 540 (Tenn. 1960)
(aggregating separate thefts from a trade union over a period of time pursuant to
a general larcenous scheme). See also People v. Fayette, 657 N.Y.S.2d 827,
829 (N.Y. 1997) (finding aggregation permissible where separate thefts are from
same owner and same location if pursuant to a sustained criminal scheme). In
the case now before us, the stolen property belonged to different owners.
Accordingly, the issue with which we are now confronted requires us to examine
the validity of an indictment for theft of property that aggregates the value of
stolen property belonging to different owners.
In 1989, the legislature eliminated the antiquated and confusing
distinctions among various larceny-related crimes by opting for a single theft of
property statute that embodies separate theft-related offenses. See Tenn. Code
Ann. § 39-14-101 (stating current theft statute "embraces . . . embezzlement,
false pretense, fraudulent conversion, larceny, receiving/concealing stolen
property, and other similar offenses"). The current theft of property statute is
codified at Tenn. Code Ann. § 39-14-103 and provides:
A person commits theft of property if, with intent to deprive the
owner of property, the person knowingly obtains or exercises
control over the property without the owner's effective consent.
Tenn. Code Ann. § 39-14-103 (1991 Repl.). Accordingly, theft of property may
be accomplished in one of two manners: (1) taking or obtaining property without
consent and with an intent to deprive; or (2) exercising control over property
without consent and with the intent to deprive.
4
Following our decision in State v. Goins, 705 S.W.2d 648 (Tenn. 1986), it
would be illogical to prohibit the State from aggregating values of stolen property
under § 39-14-103 in all cases. In Goins, the defendant was charged with
receiving and concealing stolen property. The evidence revealed that the
property belonged to three different owners. The State indicted and the jury
convicted the defendant on three counts of receiving and concealing stolen
property. This Court, however, dismissed two of the three counts on double
jeopardy principles due to the absence of clear proof supporting the State's
theory that the stolen property from the three victims was received in separate
transactions.
In cases factually similar to Goins, it defies logic to prohibit aggregation of
amounts taken from different victims when the State is already prohibited by
Goins from charging separate crimes. Such a holding potentially provides
criminals a "free theft" or a series of "free thefts."
One who exercises control over property exceeding $ 1,000.00 in value
but less than $ 10,000 in value without consent and with the intent to deprive is
guilty of a Class D felony. Tenn. Code Ann. § 39-14-105 (1991 Repl.). The
Code's felony theft-grading subsection neither prohibits aggregation, requires
that stolen articles contributing to the aggregated value be taken from the same
owner, nor mandates that the stolen property be received from a third party.
Accordingly, we find that the value of stolen property may be aggregated under
Tenn. Code Ann. § 39-14-103 when a defendant exercises simultaneous
possession or control over stolen property belonging to different owners.
In the case now before us, the defendant was in an automobile that
contained in excess of $ 2,500.00 in stolen property. The evidence indicated
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that she had simultaneous access to or control over the property without
consent. The evidence further indicated that the defendant intended to deprive
the individual owners of the property. Accordingly, the prosecutor acted within
his discretion and had probable cause to indict the defendant for theft over
$ 1,000.00. See State v. Gilliam, 901 S.W.2d 385, 389 (Tenn. Crim. App. 1995)
(stating district attorneys have broad discretion in determining what crime to
charge). We find that the indictment was facially valid. Costs of this appeal shall
be taxed against the defendant, Barbara Byrd, for which execution may issue if
necessary.
JANICE M. HOLDER, JUSTICE
PANEL
Anderson, C.J.
Reid, Drowota, J.J.
Birch, J. Not Participating
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