IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
DECEMBER SESSION, 1998 FILED
March 15, 1999
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) No. 03C01-9712-CR-00527
Appellee )
) KNOX COUNTY
vs. )
) Hon. Richard Baumgartner, Judge
GENE IVAN AMANNS, )
) (Theft of Property)
Appellant )
For the Appellant: For the Appellee:
Mark E. Stephens John Knox Walkup
District Public Defender Attorney General and Reporter
Paula R. Voss Clinton J. Morgan
Jamie Niland Assistant Attorney General
Asst. Public Defenders Criminal Justice Division
1209 Euclid Avenue 425 Fifth Avenue North
Knoxville, TN 37921 2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
Scott Green
Asst. District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED:
REVERSED AND DISMISSED
David G. Hayes
Judge
OPINION
The appellant, Gene Ivan Amanns, was convicted by a jury in the Knox County
Criminal Court of theft of property, a class D felony. The trial court imposed a four year
sentence of split confinement and ordered the appellant to serve six months in jail
followed by supervised probation. In addition, he was ordered to pay restitution in the
sum of $1,494.50. In this appeal, we address the dispositive issue of whether the
appellant’s conduct constitutes the crime of theft.1
After review, the appellant’s judgment of conviction is reversed and dismissed.
BACKGROUND
The material facts of this case are not in dispute. In early July, 1994, the
appellant, a contractor, entered into a written contract with Ms. Otey Sue Reynolds to
remodel the basement of her home. The agreed contract price was $16,000. The
terms provided that the appellant would be paid an initial amount of $6,000, a second
payment after the project was fifty percent complete, and the balance due upon
completion. On July 21, 1994, Ms. Reynolds paid the appellant $6,000 by check. The
following day, the appellant cashed the $6,000 check. On this same day, he deposited
the sum of $1,760.57 with 84 Lumber Company in Knoxville for the purchase of
estimated materials to be used in the remodeling project. The appellant advised 84
Lumber that these materials were being purchased for improvements to Ms. Reynolds’
house. The proof established that the appellant was under no contractual obligation
to establish any such account. Moreover, Ms. Reynolds had no possessory interest in
the funds in the account.
1
The appellant also raises as issues on appeal (1) that his sentence was excessive and
(2) the introduction of irrelevant and prejudicial evidence.
2
The appellant began work on August 1, 1994. The first day involved only the
unloading of some materials. The following day, he returned to Ms. Reynolds’ home
around 10:00 a.m. and worked until 3:50 p.m. for a period of approximately six hours.
Upon the appellant’s arrival at the Reynolds home the third day, Ms. Reynolds was
obviously displeased with the quality of workmanship and advised the appellant, “I can’t
have work like this in my house.” The appellant testified that he was told by Ms.
Reynolds, “I don’t like your work at all. I don’t want you to work here no more.”
Following the exchange, the appellant loaded his tools and materials and left. No
further work was performed. Ms. Reynolds testified that she attempted to contact the
appellant by phone that day by leaving a message on his recorder. Within the next two
days, Ms. Reynolds called her attorney about the matter. Approximately two days later,
the appellant received a letter from Ms. Reynolds’ attorney advising him that he was to
have no further contact with Ms. Reynolds. At the appellant’s request on August 5,
1994, 84 Lumber issued a check in the sum of $1,494.50, representing the balance of
his deposit for the Reynolds job.
At trial, the State prosecuted the case upon the theory that the $6,000 received
by the appellant from Ms. Reynolds constituted theft. At the motion for judgment of
acquittal, following the State’s proof, the appellant vigorously argued that his conduct
did not constitute a crime.2 In denying the motion, the court ruled that the proof was
insufficient to support a charge of theft for $6,000 but was sufficient to establish theft
in the amount of $1,494.50. The case was then submitted to the jury for theft of
$1,494.50.
ANALYSIS
The appellant was charged with theft of property pursuant to Tenn. Code Ann.
2
The record reflects that Ms. Reynolds had obtained a civil judgment in the sum of $6,000
against th e appe llant in Knox Coun ty Gener al Sess ions Co urt.
3
§ 39-14-103 (1991).3 With the enactment of this provision, the legislature eliminated
the traditional distinctions between various unlawful takings in favor of one general theft
statute. State v. Byrd, 968 S.W.2d 290 (Tenn. 1998). Although the current theft statute
eliminated the antiquated terminology of the old, it continues to prohibit the criminal
conduct contemplated by the former theft statutes. See State v. Byrd, No. 03C01-
9505-CR-00145 (Tenn. Crim. App. at Knoxville, Nov. 6, 1996), affirmed by, 968 S.W.2d
at 290 (citing State v. Young, 904 S.W.2d 603, 604 (Tenn. Crim. App. 1995)). In
enacting a consolidated theft statute, “the objective is to define the crime broadly
enough to include all vaguely separated theft offenses so that evidence of appropriation
by any of the forbidden methods will support the charge.” State v. Saylor, 618 P.2d
1166, 1170 (Kan. 1980)4; see also MODEL PENAL CODE § 223.1 (1980). Like charity,
Tennessee’s definition of theft covers a multitude of sins. The distinction between the
various theft offenses is unimportant; the crime is complete when a person takes
property, without the owner’s consent with the intent to deprive the owner of the
property. Thus, the charge of theft may be supported by proof of embezzlement, false
pretense, fraudulent conversion and other statutory forms of larceny existing prior to the
enactment of our current offense of theft. See Tenn. Code Ann. § 39-14-101 (1991).
For purposes of instructing the jury, the heretofore existing complexities and historical
distinctions among theft and theft-related offenses are of no significance as the jury is
charged upon the offense of theft.
The appellant argues he committed no crime and that his conduct at best
constitutes breach of a contractual obligation. Moreover, he argues that clearly he is
not guilty of theft because he obtained the sum of $6,000 from Ms. Reynolds (which
included the sum of $1,494.50) with her consent. At the trial level, the State argued
3
"A pe rson com mits theft o f pro perty if with th e inte nt to d epriv e the own er of the p rope rty,
the person knowingly obtains or exercises co ntrol over the property without the owner’s effective
consent.” Tenn. Code Ann. § 39-14-103.
4
The Kansas Supreme Court in Saylor recognized that one purpose of the consolidated
theft statute “was to avoid the pitfalls of pleading where a defendant might escape a conviction for
one type of theft by proof that he had comm itted another type of theft.” Saylor, 618 P.2d at 1170.
4
that the appellant occupied a position of trust with Ms. Reynolds in performance of the
contract:
[T]he law is very clear in this state. As a contractor he was in a fiduciary
capacity with Miss Reynolds. He was in a position of trust, and he
breached that trust by taking money which had been entrusted to him and
then converting it to his own use when he had no intention of performing.
The State argues, in effect, fraudulent breach of trust which was recognized within the
family of theft offenses which existed prior to the adoption of the 1989 criminal code.5
In order to obtain a conviction for fraudulent breach of trust, the State is required to
establish that the defendant was bound to deliver or return the thing received or its
proceeds. As the language of the statute indicates this statute encompasses crimes
involving misappropriation of money or property delivered on deposit, misappropriation
of property for hire, misappropriation of items delivered for repair, and etc. - not
construction contracts involving the improvement of real property. 6 In this case, the
appellant’s sole contractual obligation was to remodel Ms. Reynolds’ basement.
Simply because a contract exists between two parties does not mean that a
fiduciary relationship has been created as was required for the prosecution under a
theory of fraudulent breach of trust. In the absence of any statutory authority permitting
the same, a court may not impose a fiduciary relationship between parties to a contract
5
Fraudulent breach of trust is defined, in relevant part, as
The fraudulent appropriation of personal property or money by
anyone to whom it has been delivered on deposit, pledge,
sequestration, or to be carried or repaired, or in whose hands or
under w hose c ontrol it ma y be by his pos ition as clerk , agent,
factor, or bailee, or on any other contract or trust by which he
was bound to deliver or return the thing received or its proceeds,
is a fraud ulent brea ch of trus t.
Tenn . Code A nn. § 39- 4226 (1 975); see also Tenn. Code Ann. § 39-3-904 (1982) (repealed
1989).
6
This state has enacted a s tatute which provides criminal penalties for failure of a
con tract or wh o has rece ived p aym ent fr om the o wne r to pa y labor ers o r ma terialm en. T his
statute is enacted upon the premise that funds which have been received by a contractor from the
owner to pay laborers or materialmen are trust funds. Criminality arises only when there is a
misapplication of these funds. The legislative purpose is to punish for fraudulent conversion. To
impo se crim inal liability, there mu st be unp aid claim s for labo r and m aterials. See Tenn. Code
Ann. § 6 6-11-13 8 (1997 ); Daug htery v. State , 393 S.W .2d 739 ( Tenn . 1965), cert. denied, 384
U.S . 435 , 86 S .Ct. 1 601 (196 6). O bviou sly, this statu te is ina pplica ble as there are n o unp aid
claims for labor a nd/or m aterials.
5
when none exists. To do so would convert every civil breach of contract into a criminal
proceeding for fraudulent breach of trust.7 The proof in this case does not support the
crime of fraudulent breach of trust.
In order to obtain a conviction for theft, the State must prove (1) the defendant
knowingly obtained or exercised control over property; (2) the defendant did not have
the owner’s effective consent; and (3) the defendant intended to deprive the owner of
the property. Tenn. Code Ann. § 39-14-103 (1991); T.P.I. § 11.01 (3d ed. 1992).
It is undisputed that the appellant lawfully obtained possession of the $6,000 at
which time Ms. Reynolds relinquished all of her interest in the money. Moreover, the
record is void of any proof that the appellant took possession of the $6,000 with the
intent to convert the money to his own use. The proof in the record reflects that the
appellant deposited the money in the 84 Lumber account on July 22 and proceeded to
the job site on August 1 and began work. On August 3, the appellant discontinued work
after an exchange with Ms. Reynolds over poor workmanship. On August 4 or August
5, the appellant was instructed by Ms. Reynolds’ attorney not to have any further
contact with her. On August 5, the appellant withdrew the $1,494.50. While these facts
establish a breach of contract, they fall far short of establishing, beyond a reasonable
doubt, any intent to defraud.
“The unifying conception in all [theft] offenses is that each involves the
‘involuntary’ transfer of property [ “or of a legally recognized interest therein,” Tenn.
Code Ann. § 39-11-106(a)(24)(A)(i) (1991).],” MODEL PENAL CODE § 223.1 (1980), and
not the failure to comply with a contractual obligation. The application of the theft
statute must be limited in scope to cases defined by the statutory language. The
appellant’s conduct fails to establish the commission of any offense recognized under
7
Article On e, Section 18 of the T ennes see C onstitution p rohibits im prisonm ent for de bt.
6
our general theft statute. For this reason, the appellant’s conviction for theft is reversed
and dismissed.
_______________________________________
DAVID G. HAYES, Judge
CONCUR:
___________________________________
JERRY L. SMITH, Judge
___________________________________
JAMES CURWOOD WITT, JR., Judge
7