State of Tennessee v. Tabitha Gentry (AKA ABKA RE BAY)

11/29/2017
IN THE SUPREME COURT OF TENNESSEE
AT JACKSON1
June 1, 2017 Session
STATE OF TENNESSEE v. TABITHA GENTRY (AKA ABKA RE BAY)
Appeal by Permission from the Court of Appeals
Shelby County Criminal Court
No. 13-02671 Hon. James M. Lammey, Judge
___________________________________
No. W2015-01745-SC-R11-CD
___________________________________
The primary issue in this appeal is whether Tennessee’s theft statute, Tennessee Code
Annotated section 39-14-103, encompasses theft of real property. The defendant
physically entered and occupied for over a week a vacant East Memphis house valued at
more than two million dollars and filed documents with the Shelby County Register of
Deeds Office purporting to reflect her ownership of the property. A jury convicted the
defendant of theft of property valued at over $250,000 and aggravated burglary. The
defendant challenges her convictions, arguing that Tennessee’s theft statute does not
encompass theft of real property. We conclude that our theft statute applies to theft of
real property by occupation, seizure, and the filing of a deed to the property and that the
evidence is sufficient to support the defendant’s convictions. We also reject the
defendant’s arguments that the trial court improperly limited her cross-examination of a
prosecution witness and her closing argument. Accordingly, we affirm the judgment of
the Court of Criminal Appeals upholding the defendant’s convictions and remanding to
the trial court for resentencing.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
Appeals Affirmed; Case Remanded to the Trial Court for Resentencing
CORNELIA A. CLARK, J., delivered the opinion of the court, in which JEFFREY S. BIVINS,
C.J., and SHARON G. LEE, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.
Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Tabitha Gentry, a/k/a,
Abka Re Bay.
1
Oral argument was heard on the campus of Lipscomb University in Nashville, Davidson
County, Tennessee, as part of the American Legion Auxiliary Volunteer Girls State S.C.A.L.E.S.
(Supreme Court Advancing Legal Education for Students) project.
Herbert H. Slatery III, Attorney General and Reporter, Jeffrey D. Zentner, Assistant
Attorney General, Amy P. Weirich, District Attorney General; Byron Winsett and
Samuel D. Winnig, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
I. Factual and Procedural Background
The defendant, Tabitha Gentry (“Defendant”), was indicted by a Shelby County
Grand Jury for theft of property valued at over $250,000 and aggravated burglary. These
charges stemmed from Defendant’s seizure and physical occupation of an East Memphis
home, which occurred over the course of one week at the beginning of March 2013.
Defendant’s jury trial occurred from April 20 to April 23, 2015. The following is a
summary of the proof offered at trial.
On August 26, 2011, Renasant Bank (“Bank”) foreclosed on the East Memphis
home. Gregory Hadaway, an executive vice president at the Bank, assigned Greg Paule,
the person in charge of managing the Bank’s foreclosed homes, to prepare the home for
sale. The home, situated on a three-and-a-half acre gated property, was described by
various witnesses at trial as having seventeen rooms, 10,000 square feet of very nicely
finished interior space, two fireplaces, a well-manicured exterior with expensive
landscaping and a swimming pool, and a four-car garage. Mr. Paule, acting for the Bank,
contracted with a real estate agent, John Dickens, to show the home and find a buyer. By
February of 2013, Mr. Dickens had sold the home for $2.4 million dollars and scheduled
the closing for later that month. The closing was rescheduled to March 29, 2013, to
allow the Bank time to make repairs called for by a home inspection report.
Meanwhile, as the Bank worked to finalize the sale, Defendant worked to acquire
the property without purchasing it. On February 25, 2013, Defendant filed twelve pages
of difficult to decipher documents with the Shelby County Register of Deeds. The first of
these documents is a January 14, 2012 letter addressed to the Bank’s executives,
including the Bank president, Jeff Hudson. The document is an “Affidavit of Fact” and
“Cover Letter” for a mailing giving notice of Defendant’s intentions as to the East
Memphis home, although it is not clear that she ever sent the letter to Mr. Hudson or the
other people listed as recipients. Defendant also filed a document titled “quitclaim deed”
that purported to transfer title of the East Memphis home to Defendant, using
Defendant’s alias—Abka Re Bay.2 Because the documents Defendant filed were so
anomalous, the employee receiving them at the Register’s office indexed them under
2
The record is inconsistent regarding the spelling of Ms. Gentry’s alias. We have chosen to use
the spelling in the indictment even though the spelling that Ms. Gentry used in her filings with the county
register was “Re Bey.”
-2-
“miscellaneous” in the computer system and linked them with Defendant’s name, rather
than indexing them as a genuine transfer of ownership of the East Memphis home.
By March 4, 2013, Defendant had entered the East Memphis home without the
Bank’s consent or knowledge and changed the locks. She had placed a large chain and
padlock on the front gate that was positioned across the driveway to the property. She
also had posted six signs, advertising “No Trespassing,” “Private Property,” and “Keep
Out” on trees around the property. On at least two of those signs, she hand wrote her
name. In addition to the chain, she also placed on the gate a flag for the “Moorish
National Republic,” apparently with a star in the center like the Moroccan national flag,
and a sign stating, “I Abka Re Bay, seize this land” for the “Moorish National Trust.”
Mr. Dickens, who regularly checked on properties he was selling, discovered the
signs, flag, chain, and padlock when he drove by the East Memphis home on March 4,
2013. Mr. Dickens had not given anyone permission to place the items on the property,
and he had not seen them there when he had passed by the property only a couple of days
earlier.
Mr. Dickens stopped to investigate and called Mr. Paule to notify him about what
was happening at the home. Mr. Paule called his boss at the Bank, Mr. Hadaway,
because the house was a large asset on the Bank’s books. At Mr. Hadaway’s direction,
Mr. Paule called the police and drove to the property, where Mr. Dickens was waiting,
arriving around 3 p.m. Shortly after Mr. Paule arrived, both he and Mr. Dickens saw a
woman briefly leave the house and then run back inside. They saw someone peer from a
window and yell something unintelligible as the woman headed towards the house. A
few minutes later, they saw two younger people come out of the house for only a few
seconds and then jump back inside. At about 4 p.m., the Memphis City police arrived,
took pictures of the gate, and made note of the “No Trespassing” signs.
By the time the police had spoken with Mr. Dickens and Mr. Paule and prepared a
written report, it was nearly dark, and the police decided not to approach the house at that
time because of safety concerns. The officers told Mr. Paule to call the police the next
morning to discuss the situation. Mr. Paule spoke with his boss at the Bank and the
Memphis City police again the next day and the police suggested that Mr. Paule also call
the FBI, which he did. The FBI declined to become involved at that time. Later, Mr.
Paule and Mr. Dickens went to the Memphis police station in person. Mr. Dickens had
checked on the house again that morning and noticed a white car driving up the driveway
to the home. The Bank president, Mr. Hudson, had become interested in the situation and
also attended the meeting at the police station where it was decided that the Bank needed
to give the occupants of the home twenty-four hours’ notice to vacate. Mr. Hudson, Mr.
Dickens, and Mr. Paule went to the house and placed a written notice to vacate, signed by
Mr. Hudson, on the gate, which read:
-3-
March 5, 2013 (2:30) p.m.
This is your formal notice to vacate this property . . . within 24 (twenty
four) hours from date and time above.
You must have vacated this property by March 6th, 2013 at 2:30 p.m.
The next day, March 6th, Mr. Paule planned to go to the home and have the
utilities turned off, but his plans changed after he received information from an attorney
for the City of Memphis. Although the record does not contain direct testimony about
their conversation, a discussion during Defendant’s trial between the trial judge and
counsel for both parties outside the presence of the jury suggests that Mr. Paule learned
from this attorney that Defendant was under FBI investigation because of threats she had
made against the President of the United States. Seemingly as a result of concerns related
to those threats, the Shelby County Sheriff’s Office became involved and decided to enter
the house with a Special Weapons and Tactics (“SWAT”) team to arrest Defendant for
the home occupation.
On March 7th, Mr. Paule gave the Shelby County Sheriff’s Office plans to the
house in preparation for an arrest at the house. Late that night or early the next morning a
SWAT team from the Sheriff’s Office approached the house and waited by a wall on the
back side of the property. As the SWAT team prepared to enter the property, they saw a
white car leave through the front gate and radioed a command post that the car was
leaving the house. Sergeant Richard Almond III, with the Sheriff’s Office, received the
call, followed the white car, pulled it over, and arrested Defendant, pursuant to an arrest
warrant, about a quarter mile away from the entrance gate to the house. By the time of
Defendant’s arrest, at least three camera crews for news outlets were reporting from
outside the home.3
The SWAT team, believing that others were inside the home, entered the property
after Defendant left and attempted to open a door to the house with a key they had
received from the realtor. Because Defendant had changed the locks, they could not gain
entry with the key, so the SWAT team used a battering ram to break the door open. Once
inside, they discovered the house was empty, so the SWAT team left.
Sergeant Brad Less, with the Sheriff’s Office, searched the house pursuant to a
warrant on March 7, 2013, and took photographs as he did so. He discovered that interior
doors had been tied shut with ropes and belts. He found clothing, food, a few air
3
Unedited footage from one news crew was entered into evidence. It showed Defendant getting
out of a white car, unlocking the padlock holding the chain around the front gate, entering the driveway
on the property, and replacing the chain and padlock on the gate. When the news reporter walked through
the driveway entrance gate while asking Defendant questions about the home seizure, Defendant told the
reporter that she could not enter because she “[was] on private property.”
-4-
mattresses, official documents under the name of Tabitha Gentry, and “Moorish
sovereign documents” issued to “Abka Re Bay,” along with other small personal and
miscellaneous items. According to the testimony of Mr. Paule, “there was not a great
deal of damage” to the East Memphis home, although the door the SWAT team had
battered had to be repaired, locks had to be changed, and the home had to be cleaned.
Evidence and testimony at trial showed that the home sold for over $2 million on
March 29, 2013, shortly after Defendant’s occupation of the house, and had been
appraised, for county tax purposes, at $2.75 million in 2012 and $3 million in 2013.
Defendant chose not to testify at trial, at least partly based on her belief that she
was “not subject to [the] futile jurisdiction” of the trial court.4 The jury convicted
Defendant of theft of property valued at $250,000 or more, a Class A felony, and
aggravated burglary, a Class C felony. The aggravated burglary conviction was based on
Defendant’s intent to commit the theft of the real property when she entered the same
house. See Tenn. Code Ann. §§ 39-14-401 to -403 (2014 & 2017 Supp.). On May 27,
2015, the trial judge imposed a twenty-year sentence for the theft conviction and a three-
year sentence for the aggravated burglary conviction and ordered these sentences served
concurrently to each other but consecutively to Defendant’s sentence in another case
arising in Shelby County.
Defendant appealed, alleging that: (1) the evidence is insufficient to support her
convictions for theft and burglary; (2) the trial court improperly limited cross-
examination of a prosecution witness on the subject of adverse possession; (3) the trial
court improperly prohibited Defendant from discussing adverse possession in her closing
argument; and (4) the trial court erred in ordering consecutive sentencing. The Court of
Criminal Appeals affirmed Defendant’s convictions and sentences, reversed the trial
court’s ruling ordering the sentences served consecutively to the sentence imposed in
another case arising in Shelby County, remanded the case for resentencing, and affirmed
the trial court’s judgments in all other respects. State v. Gentry, W2015-01745-CCA-R3-
CD, 2016 WL 4264266 (Tenn. Crim. App. Aug. 12, 2016), perm. app. granted (Dec. 14,
2016). Defendant then filed an application for permission to appeal pursuant to Rule 11
of the Tennessee Rules of Appellate Procedure, which we granted. Because the State did
not appeal the Court of Criminal Appeals’ ruling on the issue of consecutive sentencing,
that issue is not before us.
II. Standards of Review
The primary issue in this appeal is whether Tennessee’s consolidated theft statute
encompasses the offense of theft of real property, and if so, whether theft has been
committed based on the facts in this case. Statutory construction is a question of law
which we review de novo and to which the following familiar rules apply. Our primary
4
Even though Defendant did not testify, her statements appear in the record as occasional
outbursts and direct conversations with the judge during the trial.
-5-
objective when construing statutes is to determine and carry out legislative intent without
broadening or restricting statutes beyond their intended scope. State v. Pope, 427 S.W.3d
363, 368 (Tenn. 2013). The power to define criminal offenses and assess punishments
for crimes is vested in the legislature. State v. Burdin, 924 S.W.2d 82, 87 (Tenn. 1996).
It is not the role of this Court to substitute its own policy judgments for those of the
legislature. Frazier v. State, 495 S.W.3d 246, 249 (Tenn. 2016). We always begin with
the words the General Assembly has used in the statute. Thurmond v. Mid–Cumberland
Infectious Disease Consultants, PLC, 433 S.W.3d 512, 517 (Tenn. 2014). When the
statutory language is clear and unambiguous, we apply its plain meaning, understood in
its normal and accepted usage. Id. Where statutory language or a statute’s meaning is
ambiguous, we determine legislative intent by considering the overall statutory scheme,
the legislative history, and other sources. Id.
Familiar principles also guide our determination of whether the evidence is
sufficient to support Defendant’s conviction. To begin, “we examine the relevant
statute(s) in order to determine the elements” of the offense that must be proven by the
prosecution beyond a reasonable doubt. State v. Stephens, 521 S.W.3d 718, 723-24
(Tenn. 2017) (citing State v. Smith, 436 S.W.3d 751, 761-65 (Tenn. 2014)). Having
identified the elements of the offense, we determine, “‘whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’” State v.
Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)). A guilty verdict removes the presumption of innocence and replaces it with
a presumption of guilt; thus, on appeal a defendant bears the burden of demonstrating
why the evidence is insufficient to support the conviction. Id. (citing State v. Parker, 350
S.W.3d 883, 903 (Tenn. 2011)). The State is afforded the strongest legitimate view of the
evidence presented at trial and any reasonable and legitimate inferences that may be
drawn from the evidence. Id. (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).
“The credibility of the witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of
fact.” State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575
S.W.2d 292, 295 (Tenn. Crim. App. 1978)). “This Court neither re-weighs the evidence
nor substitutes its inferences for those drawn by the jury.” Wagner, 382 S.W.3d at 297
(citing Bland, 958 S.W.2d at 659)).
III. Analysis
A. Does Tennessee’s 1989 consolidated theft statute encompass theft of real property?
1. The History of Theft
Prior to 1989, Tennessee did not have a single, generic definition of theft. Rather,
theft offenses were contained in a number of “antiquated and confusing statutes” and
included “embezzlement, false pretense, fraudulent conversion, larceny, receiving or
-6-
concealing stolen property, and shoplifting.” Tenn. Code Ann. § 39-14-101 (2014 &
2017 Supp.), Sentencing Comm’n Cmnts.5 These statutes derived from English common
law, which was later applied in the American colonies and then in American states.
People v. Williams, 305 P.3d 1241, 1244 (Cal. 2013) (recounting the history of theft-like
crimes from their common-law roots in Britain and the United States to the early 20th
century development of California's consolidated theft statute). Under the common law,
larceny was the first theft-like crime. Id. at 1245. In the 18th century, by a somewhat ad-
hoc process, the British Parliament created separate statutory offenses of theft by false
pretenses and embezzlement. Id. at 1245-46. However, this division of theft-like crimes
into separate statutory provisions was criticized as burdensome to prosecutors and
arbitrary. Id. at 1246.
Following the expansion of the scope of theft offenses, the move to enact
consolidated theft statutes can be traced at least as far back as 1827, when the Parliament
of the United Kingdom noted that “a failure of justice frequently arises from the subtle
distinction between larceny and fraud” and allowed, by statute, a conviction for larceny
to stand even if a defendant was indicted for false pretenses. State v. Tower, 251 P. 401,
402-03 (Kan. 1926) (describing this as “an act consolidating and amending the laws
relating to larceny and offenses connected therewith” and citing 7 & 8 Geo. IV, c. 29, 67
Stat. at L. 168 § 53 (1827)). In 1873, the Virginia Supreme Court opined that various
theft offenses were “so much alike in many respects and often separated by lines so
indistinct, and almost imaginary, that it was difficult for the prosecutor, in most cases, to
determine, a priori, which particular crime to charge in the indictment.” Anable v. Com.,
65 Va. (24 Gratt.) 563, 580 (1873). This criticism of arbitrary distinctions between
larceny, embezzlement, and false pretenses, was expanded upon and echoed by many
subsequent commentators. See Stuart P. Green, Thirteen Ways to Steal a Bicycle, 17,
284 n. 67 (2012) (hereinafter “Green at __”); Com. v. Ryan, 30 N.E. 364, 364-65 (Mass.
1892); Van Vechten v. Am. Eagle Fire Ins. Co., 146 N.E. 432, 433 (N.Y. 1925).
In the 1950s and 60s, the American Law Institute attempted to resolve some of
these arbitrary distinctions by drafting and including in the Model Penal Code a
consolidated theft statute, from which many states borrowed in crafting their own
statutes.6 See Model Penal Code § 223.1 (1962). By 1985, just four years before the
General Assembly enacted the consolidated theft statute at issue in this appeal, the
5
Prior to this consolidation, various crimes were included, along with false pretenses, at
Tennessee Code Annotated §§ 39-1901-62, and another grouping, including larceny and embezzlement
crimes, appeared at §§ 39-4201-39 (1975 & 1982 Supp.). One example of the confusing number of
defined crimes, and the strangely specific nature of some of the offenses, is “[s]ubstitution of brands of
soft drinks.” Id. § 39-1926.
6
According to a recent book on the subject, the Model Penal Code’s section on consolidating
theft offenses was the most influential provision dealing with specific crime definitions. See Green at 27.
-7-
Maryland Supreme Court summarized the state of the law throughout the United States
and the movement towards consolidation of theft offenses:
At least thirty-five states, in addition to Maryland, have enacted
consolidated theft-related statutes. While the provisions of these statutes
vary from state to state, their purpose appears to be, as in Maryland, to
create a single statutory crime encompassing various common law theft-
type offenses in order to eliminate the confusing and fine-line common law
distinctions between particular forms of larceny. Eleven states have
enacted provisions virtually identical to those contained in § 341 of the
Maryland statute; they are in general conformity with § 223.1(1) of the
Model Penal Code (1962).
Jones v. State, 493 A.2d 1062, 1067, 1067 n.7-9 (Md. 1985) (internal citations omitted).7
2. The 1989 Tennessee Statute
The Criminal Sentencing Reform Act of 19898 brought about a “major structural
change in Tennessee theft law” by replacing, including, and embracing “traditional theft
offenses” into a new statutory “generic” theft offense. Tenn. Code Ann. § 39-14-101 &
Sentencing Comm’n Cmnts.9 Like many other states, Tennessee enacted a consolidated
theft statute that is heavily based, both conceptually and textually,10 on the Model Penal
Code. A person commits theft under our statute, when he or she “obtains or exercises
control over [] property without the owner’s effective consent.” Tenn. Code Ann. § 39-
14-103 (2014 & 2017 Supp.). Thus, three elements must be proven to establish theft
under our statute: “(1) the defendant knowingly obtained or exercised control over
property; (2) the defendant did not have the ownerʼs effective consent; and (3) the
7
States have continued to enact consolidated theft statutes in the years since the Maryland
decision. See Green at 23.
8
1989 Tenn. Pub. Acts, c. 591, § 1.
9
The Sentencing Commission Comments to the Sentencing Act do not reflect legislation enacted
in 1995 or thereafter because the Sentencing Commission terminated on June 30, 1995. Nevertheless, the
relevant sections of Tennessee Code Annotated sections 39-14-101 and -103 have not been amended
since 1989. Therefore, the Sentencing Commission Comments to section 39-14-101 and -103 remain
accurate. See Tenn. Code Ann. § 39-14-103 (2014), Compilerʼs Notes.
10
The Tennessee Sentencing Commission, in a 1988 report, described the statute as “consistent
with the clear national trend.” Tennessee Sentencing Comm’n, Proposed Revised Criminal Code Book II,
at 108 (1988).
-8-
defendant intended to deprive the owner of the property.” State v. Amanns, 2 S.W.3d
241, 244-45 (Tenn. Crim. App. 1999).
Defendant argues that we should interpret the 1989 statute as limited in scope to
offenses recognized as theft prior to 1989.11 It is true that the terms “obtains or exercises
control” encompass concepts that were familiar to pre-1989 offenses. For example,
larceny involved a physical taking or obtaining of property, while false pretenses
involved obtaining property by deception, and embezzlement involved exercising control
over property without the owner’s consent.12 But by using these terms the General
Assembly clearly did not intend to limit the scope of the 1989 statute to the offenses
previously recognized as theft. To the contrary, the General Assembly very broadly
defined “[o]btain,” as used in the theft statute, declaring that it
includes, but is not limited to, the taking, carrying away or the sale,
conveyance or transfer of title to or interest in or possession of property,
and includes, but is not limited to, conduct known as larceny, larceny by
trick, larceny by conversion, embezzlement, extortion or obtaining property
by false pretenses . . . .
Tenn. Code Ann. § 39-11-106(a)(24)(B) (emphases added). Twice in this concise
statutory definition the General Assembly emphasizes that “[o]btain” encompasses but is
not limited in scope to conduct formerly categorized as theft. See also Tenn. Code Ann.
§ 39-14-101 (stating that theft under the 1989 statute embraces “the separate offenses
referenced before 1989 as embezzlement, false pretense, fraudulent conversion, larceny,
receiving or concealing stolen property, and other similar offenses.” (emphasis added));
State v. Young, 904 S.W.2d 603, 606 (Tenn. Crim. App. 1995) (“Even though the
legislature intended to simplify the prosecution of theft crimes by consolidating them into
a general statute, the legislature also clearly changed the definition of the crime and the
elements needed to prove the offense.”); State v. Nix, 922 S.W.2d 894, 900-01 (Tenn.
Crim. App. 1995) (explaining that a theft, for the purposes of defining robbery, no longer
requires asportation under the 1989 theft statute).13
11
No Tennessee decision before 1989 addresses theft of real property, nor did any Tennessee
statute before 1989 include real property in the various criminal offenses embraced and replaced by the
1989 consolidated theft statute.
12
For an explanation of how this terminology was derived, see Model Penal Code
Commentaries, Part II §§ 220.1-230.5, 163-66 (Official Draft and Revised Comments 1980) (Hereinafter
“MPC Commentaries at __”); and compare the language of Tennessee Criminal Code section 39-11-
106(a)(24)(A) (2014 & 2017 Supp.), with Model Penal Code sections 223.0(5) and 223.3.
13
Other state courts have come to the same conclusion about their similarly worded consolidated
theft statutes. See, e.g., State v. Linehan, 56 P.3d 542, 547-48 (Wash. 2002) (refusing to limit the term
“exert unauthorized control” in its theft statute to embezzlement prosecutions); Roberts v. People, 203
P.3d 513, 517 (Colo. 2009) (refusing to limit its statute to former theft-related crimes and stating that
-9-
Thus the scope of our consolidated theft statute is not limited by common-law
technicalities, and “distinction[s] between the various theft offenses [are] 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.” Amanns, 2 S.W.3d at 243-44. “[T]he
critical inquiry is thus twofold: whether the actor had control of the property, no matter
how he got it, and whether the actor’s acquisition or use of the property was authorized.”
MPC Commentaries at 166.14 As described by one of the principal drafters of the
consolidated theft language in the Model Penal Code, Louis B. Schwartz, “[t]here are a
lot of ways of stealing. The basic conception of this draft [of the consolidated statute] is
that it does not make any difference which way you choose to steal. If you are stealing,
you are a thief.” Green at 26.
Defendant alternatively argues that the Tennessee consolidated theft statute
applies only to tangible, movable property, and does not apply to real property, such as
the house at issue in this case. In response, the State points to Tennessee Code Annotated
section 39-11-106(a)(28), which defines property as:
anything of value, including, but not limited to, money, real estate, tangible
or intangible personal property, including anything severed from land,
library material, contract rights, choses-in-action, interests in or claims to
wealth, credit, admission or transportation tickets, captured or domestic
animals, food and drink, electric or other power.
Tenn. Code Ann. § 39-11-106(a)(28) (emphasis added). We agree with the State on this
issue, for several reasons.
First, the Sentencing Commission Comments for Tennessee Code Annotated
section 39-14-103 state directly that the statute “punishes theft of property as defined in §
39-11-106.”15 Furthermore, the “[d]efinitions” section includes other terms that appear in
“those crimes were expressly abolished with the adoption of the consolidated theft statute, for the express
purpose of removing the distinctions and technicalities that previously existed in the pleading and proof
of theft-like crimes”).
14
Along the same lines, in commentary accompanying the proposed legislation, the Sentencing
Commission explained that under the consolidated theft statute, the focus shifted to “the harm that
accompanies the acquisitive conduct, however the acquisition was accomplished.” Tennessee Sentencing
Comm’n, Proposed Revised Criminal Code Book II, at 108 (1988).
15
The Model Penal Code section on theft of property, on which the Tennessee and other state
statutes are based, similarly defines property to include “anything of value,” including real estate. Model
Penal Code § 223.0(6). See also, e.g., 720 Ill. Comp. Stat. Ann. 5/15-1; People v. Perry, 864 N.E.2d 196,
204-10 (Ill. 2007) (discussing the scope of the “anything of value” language in the context of theft
prosecutions).
- 10 -
the theft of property statute, such as “[d]eprive,” “[e]ffective consent,” “[o]btain,” and
“[o]wner.” Tenn. Code Ann. §§ 39-11-106(a)(8), (9), (24), and (26).
More importantly for purposes of this appeal is a distinction drawn in the Model
Penal Code that the General Assembly has chosen not to adopt. Specifically, the Model
Penal Code distinguishes, in the definition of the crime of “[t]heft by [u]nlawful [t]aking
or [d]isposition,” between movable and immovable property:
(1) Movable Property. A person is guilty of theft if he unlawfully takes, or
exercises unlawful control over, movable property of another with purpose
to deprive him thereof.
(2) Immovable Property. A person is guilty of theft if he unlawfully
transfers immovable property of another or any interest therein with
purpose to benefit himself or another not entitled thereto.
Model Penal Code § 223.2. The comments in § 223.1, explain,
Immovable property, principally real estate, is stolen if one unlawfully
transfers the property of another, or an interest therein, with purpose to
benefit himself or another not entitled thereto. The major purpose of the
distinction is to avoid theft liability for such conduct as trespass or
occupying real property beyond the terms of a lease.
Model Penal Code § 223.1, Explanatory Note. The Model Penal Code drafters believed
that the definition of theft was broad enough to encompass and apply to theft by physical
occupation of real property unless an express distinction were drawn, specifying that
immovable property could only be subject to theft by “unlawfully transfer[ring the]
property.” Some states have incorporated this exact distinction and limitation in their
own consolidated theft statutes. See, e.g., N.J. Stat. Ann. § 2C:20-3; 18 Pa. Cons. Stat.
Ann. § 3921; 9 Guam Code Ann. § 43.30; Neb. Rev. Stat. § 28-511; Ky. Rev. Stat. Ann.
§ 514.030; State v. Kosch, 133 A.3d 669, 678-79 (N.J. Super. Ct. App. Div. 2016)
(explaining that, while conduct of squatters is not criminalized under the New Jersey
statute, the defendant could be found guilty of fraudulently transferring the right to
charge rents to the property to himself).16 Other states have simply excluded immovable
property from their theft statutes. See, e.g., Ala. Code § 13A-8-1(11); Ark. Code Ann. §
5-36-101(8); Del. Code Ann. tit. 11 § 857(6); see also Wayne R. LaFave, 3 Subst. Crim.
L. § 19.4 n.7 (2d ed.); Sheffield v. State, 708 So. 2d 899, 900 (Ala. Crim. App. 1997)
(explaining over the course of the entire opinion why immovable property cannot be the
object of theft under the Alabama statute and reversing the defendant’s theft conviction).
At least one state, Maryland, has adopted a statute clarifying that theft does not include
16
Citations to statutes from other States are current through 2017 from Westlaw.
- 11 -
trespass or occupying land without authorization. Md. Code Ann., Crim. Law § 7-
101(d)(2).17
Tennessee has not adopted any of these limitations. Indeed, in our criminal code,
the term movable property is used only once in a statute not relevant to this appeal. See
Tenn. Code Ann. § 39-11-106(a)(35) (defining “[s]ervices” that can be stolen as the “use
of vehicles or other movable property”). The theft statute makes no distinction between
movable and immovable property, either in the definition of theft, id. § 39-14-103, or in
the definition of property, id. § 39-11-106(a)(28). And although we have previously
discussed one statutory definition of “[o]btain,” our criminal code defines “[o]btain”
twice.18 Tennessee Code Annotated section 39-11-106(a)(24)(A)(i) states that “[o]btain”
means to “[b]ring about a transfer or purported transfer of property or of a legally
recognized interest in the property, whether to the defendant or another.” This language
is nearly identical to the Model Penal Code’s description of theft of immovable property,
including real estate. However, unlike the Model Penal Code, which uses this language
to define the exclusive means of stealing real or immovable property, Model Penal Code
§ 223.2(2), under our statute, a person commits theft of real property either by obtaining
(under sub-section (A) or (B)) or exercising control of real property. Tenn. Code Ann. §§
39-14-103, 39-11-106(a)(24). Thus, no limitations in our consolidated theft statute
preclude its application to theft of real property generally or distinguish between real and
personal property for purposes of the conduct requirements for carrying out a theft.
Given the options available to the General Assembly when the consolidated theft
statute was enacted and the statutory language it chose to adopt, we conclude that the
General Assembly intended our consolidated theft statute to apply to theft of real
property in the same way it applies to other property. That decision was and is within the
competency of the General Assembly, which was fully capable of employing alternate
language in the theft statute. See, e.g., Tenn. Code Ann. § 39-14-104 (2014 & 2017
Supp.) (defining theft of services as a person “intentionally obtain[ing] services by
17
A 1971 proposal to reform federal criminal law would have recognized but limited the offense
of theft of real property to a “transfer or attempted transfer of an interest in the property.” National
Commission on Reform of Federal Criminal Laws, Final Report § 1741(f) (1971). The Commission
submitting this proposal was headed by Louis B. Schwarz, former deputy director of the Model Penal
Code drafting, but the Commission’s proposed statutory revisions were never enacted despite significant
support and repeated efforts. See Ronald L. Gainer, Remarks on the Introduction of Criminal Law
Reform Initiatives, 7 J.L. Econ. & Pol’y 587, 589 (2011).
18
The dual definitions of the term are perhaps a result of borrowing language from different
sources in the drafting of the Tennessee provision. The first definition, at Tennessee Code Annotated
section 39-11-106(a)(24)(A), is nearly identical to the Model Penal Code definition, section 223.0(5), as
used in section 223.3, [t]heft by [d]eception. The second definition, at Tennessee Code Annotated section
39-11-106(a)(24)(B), is nearly identical to how other states have defined the phrase “obtains or exerts
control” (or “obtains or exercises control”). See e.g., 720 Ill. Comp. Stat. Ann. 5/15-8; Kan. Stat. Ann. §
21-5111(r); N.H. Rev. Stat. Ann. § 637:3(II).
- 12 -
deception, fraud, coercion, forgery, false statement, false pretense or any other means to
avoid payment for the services”).
Defendant argues that the theft statute should not apply to her because this was
essentially a civil matter and that “a squatter is not subject to prosecution under
[Tennessee’s consolidated] theft statute[].” To the extent that the Defendant occupied the
house without the Bank’s effective consent, it does not matter, as Defendant states, that
there were civil remedies available to the Bank to evict Defendant, or that the Uniform
Residential Landlord Tenant Act has provisions that govern the conduct at issue in this
case. We note that the Model Penal Code Commentaries have a fairly detailed note on
this subject along the lines of the Defendant’s points.19 But, as already explained, the
Tennessee General Assembly chose not to limit theft to personal property. Courts may
neither alter or amend statutes nor substitute our own policy judgments for those of the
General Assembly. Britt v. Dyer’s Empl. Agency, Inc., 396 S.W.3d 519, 523 (Tenn.
2013). Perhaps the General Assembly should have excluded real property from the theft
statute, but it has not done so. See Am. Heritage Apartments, Inc. v. Hamilton Cnty.
Water and Wastewater Treatment Auth., 494 S.W.3d 31, 50 (Tenn. 2016). “Just as we
may not overlook or ignore any of the words in a statute, we must be circumspect about
adding words to a statute that the General Assembly did not place there.” Coleman v.
State, 341 S.W.3d 221, 241 (Tenn. 2011) (citations omitted). Here, the statute is broad
enough to encompass theft of real property, and we are not at liberty to impose a
restriction on that language.
B. Is the proof in this case sufficient to support a conviction for theft of real property?
Having concluded that the Tennessee theft statute encompasses theft of real
property, we acknowledge that this is a case of first impression for this Court.
Historically, the more typical case of theft of real property involves a fraudulently
induced transfer of title to real property. See e.g., State v. Toney, 90 N.E. 142 (Ohio
1909) (affirming a theft conviction where the defendant forged documents of title and
sold the “fraudulent[ly] obtain[ed]” real property to third-parties); People v. Rabe, 261 P.
303 (Cal. 1927) (affirming a theft conviction where defendant received real property for
preorganization stock in a company based on misrepresentations as to the assets and
activities of the company).
We recognize that this case is unique in many ways, both factually and legally, but
our obligation is simply to determine whether the evidence is sufficient to support
Defendant’s conviction for theft of property valued at over $250,000.
19
See MPC Commentaries at 172-74; see also Green at 26.
- 13 -
Here, the State presented proof showing that Defendant entered the East Memphis
house, posted signs indicating it belonged to her, padlocked the gate to the property,
changed the locks on the doors, and told a reporter attempting to enter the property that it
belonged to her. Before Defendant ever occupied the house, she had already filed papers
with the Register of Deeds Office by which she sought to obtain record ownership of the
property. This action, coupled with her physical occupation and seizure of the house, is
sufficient evidence to support the jury’s finding that Defendant obtained and/or exercised
control over the real property. These facts, particularly Defendant’s filing with the
Register of Deeds Office, are also sufficient to support the jury’s finding that Defendant
had the intent to permanently deprive the Bank of the property. Tenn. Code Ann. § 39-
11-106(a)(8)(A). The damage to the East Memphis home was minimal, and the duration
of Defendant’s physical seizure and occupation of the real property short lived, but
sufficient evidence supports the jury’s findings on these issues.
Defendant also argues that theft of real property is too severe a criminal offense to
charge under the circumstances of this case and that other less severe criminal charges,
such as criminal trespass, Tenn. Code Ann. § 39-14-405 (2014 & 2017 Supp.),
vandalism, Tenn. Code Ann. § 39-14-408 (2014 & 2017 Supp.), or filing a transfer
document without a legal or equitable basis, Tenn. Code Ann. § 39-17-116 (2014), were
more appropriate on these facts. Even assuming that Defendant’s conduct could have
supported less severe charges, with penalties more proportionate to the actual harm that
Defendant caused, we agree with the Court of Criminal Appeals that decisions about
“whether to prosecute and for what offense” are matters of prosecutorial discretion.
Gentry, 2016 WL 4264266, at *6 (quoting Dearborne v. State, 575 S.W.2d 259, 262
(Tenn. 1978)). Although the facts of most “squatter” cases would not support a
conviction for theft, certain fact scenarios do qualify.
Despite Defendant’s argument, this is not a case where a squatter temporarily
occupies an abandoned property and takes no action that evidences any intent to deprive
the owner of the property. This is also not a case where a tenant holds over or fails to pay
rent and questions of proof as to the intent to deprive the owner of any ownership interest
in the property would similarly be difficult. Under these scenarios, if the State cannot
prove an essential element of theft, it would be limited to charging a defendant with a less
serious offense such as criminal trespass or vandalism, if at all.
However, we reiterate that this is not a typical case. And Defendant was not a
mere squatter. The purported deed that she filed with the Register of Deeds Office, along
with the other facts demonstrating her intent to exclude the Bank from accessing the
property and her intent to deprive the bank of its entire interest in the house, distinguish
this case.
- 14 -
C. For sentence classification purposes, what is the proper valuation method for theft
of real property?
Tennessee Code Annotated section 39-14-105 (2014 & 2017 Supp.) establishes
penalties for theft based on the “value of the property or services obtained.” Property
value for purposes of this statute means “the fair market value of the property . . . at the
time and place of the offense.” Tenn. Code Ann. § 39-11-106(a)(36)(A)(i).
Alternatively, “[i]f the fair market value of the property cannot be ascertained,” then
replacement cost is the measure of value. Id. § 39-11-106(a)(36)(A)(ii); see also State v.
Smith, M2014-01969-CCA-R3-CD, 2015 WL 6082625, at *4 (Tenn. Crim. App. Oct. 16,
2015) (explaining that the cost of repairs is the appropriate means for determining
replacement costs in cases of vandalism). If either of those methods fails to yield an
ascertainable valuation, the property “is deemed to have a value of less than fifty dollars.”
Id. § 39-11-106(a)(36)(C).20 Here, the State offered ample evidence to establish the fair
market value of the East Memphis house, and the jury convicted Defendant of theft over
$250,000, a Class A felony with a sentencing range of fifteen to twenty five years. Tenn.
Code Ann. § 40-35-112(a)(1) (2014 & 2017 Supp.).
Defendant argues that the appropriate valuation for purposes of grading her
offense is the rental value of the East Memphis house for the time that she actually
occupied the house. We recognize that, given the high fair market value of real estate,
persons convicted of theft of real property will potentially be subject to longer sentences.
But no language in either Tennessee Code Annotated section 39-14-105, grading the
severity of theft offenses, or in section 39-11-106(a)(36), explaining how to value
property, authorizes courts to use the rental value of the duration of a theft to determine
the value of the property that was taken.
Cases where rental value has been used in determining the value of the property in
theft convictions in other states are distinguishable. In those cases, a defendant either
entered into a lease agreement with no intent to pay the landlord, see, e.g., People v. Bell,
128 Cal. Rptr. 3d 588, 592 (Cal. Ct. App. 2011); People v. Hagan, C072508, 2013 WL
4851250, at *2 (Cal. Ct. App. Sept. 11, 2013), or a defendant unlawfully collected rent on
properties, see, e.g., Kosch, 133 A.3d at 678 (defendant used fraudulent documents to
represent to third-parties that he had a right to rent the properties but never filed the
documents or otherwise acted to transfer title to the properties); State v. Burrell, 2011-
Ohio-5655, at ¶ 6 (defendant believed “he could do whatever he pleased” with a house,
including renting it to third-parties while it was the subject of a foreclosure action). In
these cases, the evidence supported the conclusion that the defendants intended to deprive
20
Sub-section (B) covers value determinations for documents and debt instruments and sub-
section (D) covers deductions for consideration given by the defendant and for valuable interests the
defendant may have in the property taken, neither of which is applicable here. Tenn. Code Ann. § 39-11-
106(a)(36)(B), (D).
- 15 -
the rightful owners of the properties of rental proceeds or value, but not that the
defendants intended to take exclusive ownership or title to the properties.
Where there is clear evidence that a defendant intended to take ownership and title
to real property, courts have used the full fair market value of the property to grade the
theft. People v. Jensen, 172 P.3d 946 (Colo. App. 2007) (grading theft based on the fair
market value of land where the defendant received a warranty deed to the land from the
victim as collateral for co-signing a felony appearance bond and subsequently filed a
quitclaim deed to the property and refused to give either deed to the victim after the bond
conditions lapsed); Com. v. Figueroa, 859 A.2d 793, 798 (Pa. Super. 2004) (finding
sufficient evidence that defendant intended “to steal title” to real property from deceased
owners via forged deeds and grading the offense based on the value of the real property);
Brown v. State, 64 N.E.3d 1219, 1231 (Ind. App. 2016) (discussing defendant’s intent to
take ownership of a house, by occupying it much like the Defendant did in this case, with
a value of “at least $100,000” in upholding a burglary conviction).
As discussed above, the evidence in this case established that Defendant intended
to deprive the Bank of ownership of the East Memphis real property, and not just the
rental value of it. Thus, fair market value is the appropriate measure of the value of the
real property Defendant obtained. To establish fair market value, the prosecution offered
proof to show that the home sold for over $2 million shortly after Defendant’s arrest and
that it had been appraised for property tax purposes at $2.75 million in 2012 and $3
million in 2013. Thus, we conclude that sufficient evidence supports the jury’s verdict
finding Defendant guilty of theft of property valued at over $250,000, a Class A felony.
Tenn. Code Ann. § 39-14-105(a)(6).
D. Is the proof in this case sufficient to support a conviction for aggravated burglary?
Defendant’s sole challenge to the sufficiency of the evidence to support her
conviction for aggravated burglary is that because she never committed theft, she did not
have the requisite “intent to commit a felony, theft or assault” when she entered into the
East Memphis home. Tenn. Code Ann. § 39-14-402. A person commits aggravated
burglary when she (1) enters a habitation, defined as any structure designed or adapted
for the overnight accommodation of persons; (2) without the effective consent of the
property owner; and (3) with intent to commit a felony, theft, or assault. Tenn. Code
Ann. §§ 39-14-401 to -403. As we have already concluded that sufficient evidence
supports the jury’s verdict finding Defendant guilty of theft, Defendant’s challenge to the
sufficiency of the evidence to support her aggravated burglary conviction is without
merit.
E. Adverse Possession and Claim of Right Issues
Defendant asserts that the trial court abused its discretion in limiting defense
counsel’s cross-examination of a witness about the legal doctrine of adverse possession
- 16 -
and again abused its discretion when it excluded discussion of adverse possession from
closing arguments. The propriety, scope, manner, and control of cross-examination of
witnesses . . . remain within the discretion of the trial court. State v. Echols, 382 S.W.3d
266, 285 (Tenn. 2012) (citing State v. Reid, 213 S.W.3d 792, 838 (2006); State v. Rice,
184 S.W.3d 646, 670 (2006)). This Court will not disturb the limits placed upon cross-
examination by the trial court, unless the trial court has unreasonably restricted the right.
Reid, 213 S.W.3d at 839 (citing State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim.
App. 1995)).
The record belies Defendant’s assertion that the trial court limited her questioning
of the witness. The record shows that Defendant cross-examined a prosecution witness,
real estate agent Mr. Dickens, about the elements of adverse possession in an apparent
attempt to establish the affirmative defense of claim of right. See Tenn. Code Ann. § 39-
14-107(1)-(2) (2014).21 On redirect examination, the State asked Mr. Dickens, without
objection from Defendant, whether adverse possession is a defense to theft. The witness
responded that, based on what he had learned, it is not. Counsel for Defendant broached
the subject again on re-cross, posing questions aimed at ascertaining the basis of the
witness’s statement that adverse possession is not a defense to theft. The non-attorney
witness responded that he had learned over the course of this case that it is not a defense.
As counsel for Defendant pressed the witness to clarify his knowledge of adverse
possession the prosecution objected. In ruling on the objection, the trial court stated that
it was not going to allow either the defense or the prosecution to delve any farther into
adverse possession. Counsel for Defendant then asked the trial court for permission to
ask the witness if he knew whether adverse possession is a defense to theft. The trial
judge allowed defense counsel to pose this question, and the witness responded that he
did not know. Defense counsel did not seek permission to ask additional questions, nor
did Defendant make an offer of proof about other questions that would have been asked
but for the trial court’s ruling. Tenn. R. Evid. 103(a)(2). Thus, we conclude that
Defendantʼs assertion that she was limited in questioning the witness about adverse
possession is wholly without merit.
In our view, the trial court afforded Defendant great latitude by allowing any
questions about adverse possession to support the affirmative defense of claim of right.
See Tenn. Code Ann. § 39-14-107(1)-(2). Defendant remained in this property for only a
week and adverse possession requires possession for a period of years. See Cumulus
Broad., Inc. v. Shim, 226 S.W.3d 366, 376 (Tenn. 2007). The trial court nevertheless
21
These statutory provisions state:
It is an affirmative defense to prosecution under §§ 39-14-103, 39-14-104 and 39-14-106
that the person:
(1) Acted under an honest claim of right to the property or service involved;
(2) Acted in the honest belief that the person had the right to obtain or exercise control
over the property or service as the person did . . . .
- 17 -
allowed Defendant to ask questions about adverse possession to support the claim of right
defense and instructed the jury on the claim of right defense. Having heard all the
evidence, the jury simply exercised its prerogative to reject this defense. Defendant’s
assertion that the trial court improperly limited her questioning of this witness is simply
without merit.
Also without merit is Defendant’s assertion that the trial court erred by limiting
closing argument about adverse possession. Closing arguments are not evidence. State
v. Shaw, 37 S.W.3d 900, 904 (Tenn. 2001). Furthermore, trial courts have broad
discretion to control closing arguments. State v. Odom, 336 S.W.3d 541, 559 (Tenn.
2011). Having allowed Defendant great latitude in questioning witnesses about adverse
possession and instructing the jury on her claim of right defense, the trial court did not
abuse its discretion by imposing limitations on closing argument. Moreover, even
assuming the trial court abused its discretion, Defendant has failed to establish, or even
allege, any prejudice resulting from this limitation. State v. Rodriguez, 254 S.W.3d 361,
371-72 (Tenn. 2008) (quoting Tenn. R. App. P. 36). Again, the jury received an
instruction on the claim of right defense and rejected it. The Defendant is not entitled to
relief on this claim.
IV. Conclusion
For the reasons stated herein, the judgments of the trial court and Court of
Criminal Appeals are affirmed. Because the Court of Criminal Appeals’ ruling on
consecutive sentencing was not appealed and remains undisturbed, this matter is
remanded for resentencing in accordance with the Court of Criminal Appeals’ decision
that consecutive sentencing was not appropriate in this case. It appearing that Defendant
is indigent, costs of this appeal are taxed to the State of Tennessee.
_________________________________
CORNELIA A. CLARK, JUSTICE
- 18 -