              IN THE SUPREME COURT OF TENNESSEE
                         AT KNOXVILLE
                    (HEARD AT JOHNSON CITY)    FILED
                                                 April 27, 1998

                                             Cecil Crowson, Jr.
                                               Appellate C ourt Clerk

                                    FOR PUBLICATION

                                    Filed:   April 27, 1998




STATE OF TENNESSEE,           )
                              )
     APPELLEE,                )     BRADLEY CRIMINAL
                              )
v.                            )     Hon. Mayo L. Mashburn, Judge
                              )
JOSEPH CATTONE,               )     No. 03S01-9706-CR-00075
                              )
     APPELLANT.               )




FOR APPELLANTS:               FOR APPELLEES:

CHARLES M. CORN               JOHN KNOX WALKUP
PUBLIC DEFENDER               ATTORNEY GENERAL AND REPORTER
CLEVELAND
                              ELIZABETH T. RYAN
                              ASSISTANT ATTORNEY GENERAL
                              NASHVILLE




                      OPINION



APPELLATE COURT REVERSED IN PART,
AFFIRMED IN PART; CASE REMANDED                            HOLDER, J.
                                     OPINION



       We granted an appeal in this case to determine whether the values of

service rendered by different individuals may be aggregated under the theft of

services statute, Tenn. Code Ann. § 39-14-104. In State v. Byrd, ___ S.W.2d

___ (Tenn. 1998), we held simultaneous possession of stolen property belonging

to different owners may be considered as one offense and the value of the

property may be aggregated for purposes of establishing the grade of offense

under the theft of property statute. Our holding in Byrd, however, was limited to

theft by the exercise of control over another's property and did not apply to theft

of services. We hold that the value of services taken from separate individuals

cannot be aggregated under the theft of services statute.



                                      FACTS



       The defendant owned and operated a business. In April, 1991, his drug

and alcohol dependence began to affect his business. In May, 1991, he was

unable to pay his employees for their services, to pay his United Parcel Service

("UPS") bill and to cover a draft he had written to a supplier for materials.

Subsequently, he was indicted for two counts of theft of services and for two

counts of theft of property.



       In count I of the indictment, the State alleged that the defendant

committed theft of services from approximately thirty-five of his employees. The

indictment read, in pertinent part, that the defendant:



       on or about MAY, 1991, . . . unlawfully, feloniously, knowingly and
       intentionally obtain[ed] services of: [names of thirty-five
       individuals], by use of deception, fraud, coercion, false pretense or
       other means for the purpose of avoiding payment for said services.


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       Further, that said acts were a continuing, criminal impulse or intent
       or were pursuant to the execution of a general larcenous scheme,
       whereby constituting a single act. Said services are valued at more
       than TEN THOUSAND AND 00/100 DOLLARS ($ 10,000.00), in
       violation of T.C.A. 39-14-104, . . .



Accordingly, the indictment aggregated the total value of the thirty-five

employees' services for purposes of establishing the grade of the offense

charged.



       Count II of the indictment charged the defendant with theft of services

under Tenn. Code Ann. § 39-14-104 for failing to pay his UPS bills in May of

1991. The indictment stated that the defendant:



       on or about MAY, 1991, in Polk County, Tennessee, and before the
       finding of this indictment, did unlawfully, feloniously, knowingly and
       intentionally obtain services of UNITED PARCEL SERVICES
       (UPS) by use of deception, fraud, coercion, false pretense or other
       means for the purpose of avoiding payment for said services. Said
       services are valued at more than ONE THOUSAND AND 00/100
       DOLLARS ($ 1,000.00), in violation of T.C.A. 39-14-104, all of
       which is against the peace and dignity of the State of Tennessee;



In charging the defendant with theft of property under Tenn. Code Ann.

§ 39-14-103, count III stated that:



       on or about MAY, 1991, in Polk County, Tennessee, and before the
       finding of this indictment, [the defendant] did unlawfully, feloniously
       and knowingly exercise control over property, to-wit:

       personal property, over the value of FIVE HUNDRED DOLLARS ($
       500.00),

       of KENNETH CHASE without his effective consent, with intent to
       deprive the said owner thereof, in violation of T.C.A. 39-14-103, all
       of which is against the peace and dignity of the State of
       Tennessee.




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Count IV charged the defendant with theft of property under Tenn. Code Ann. §

39-13-103:



        on or about MAY, 1991, in Polk County, Tennessee, and before the
        finding of this indictment, [the defendant] did unlawfully, feloniously
        and knowingly exercise control over property, to wit:

        personal property, over the value of FIVE HUNDRED DOLLARS ($
        500.00),

        of WALTER CHAMPION COMPANY without their effective
        consent, with intent to deprive the said owner thereof, in violation of
        T.C.A. 39-14-103, all of which is against the peace and dignity of
        the State of Tennessee.



        The defendant filed a motion to dismiss arguing that the indictment, as

described by the bill of particulars, did not allege "any factual allegations

amounting to a crime." Specifically, the defendant alleged that: (1) count I

improperly aggregated "numerous misdemeanors into a single felony count;" (2)

counts I and II failed to described the wrongdoing "allegedly perpetrated by the

defendant;" and (3) counts III and IV failed to "adequately describe the goods

[and] services allegedly received by the defendant." The trial court granted the

defendant's motion to dismiss "upon the grounds that the facts did not support

the criminal intent of theft of services." The Court of Criminal Appeals reversed

the trial court and reinstated the indictment on all four counts. We reverse the

appellate court as to count I of the indictment and affirm the appellate court's

reinstatement of counts II, III and IV.1



                                            COUNT I




        1
         Ora l argu me nt wa s hea rd in th is cas e on N ovem ber 2 0, 19 97, in John son City,
Tenn essee , as part of this Cou rt’s S.C.A.L .E.S. (Supreme Court Advancing Lega l Education for
Students ) project.

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       Count I charged the defendant with theft of services for "intentionally

obtain[ing] services." The theft of services statute is codified at Tenn. Code Ann.

§ 39-14-104 and provides in relevant part:



       Theft of Services. --A person commits theft of services who:
        (1) Intentionally obtains services by deception, fraud, coercion, false
       pretense or any other means to avoid payment for the services;



Tenn. Code Ann. § 39-14-104.



       Aggregation of theft offenses is generally permitted under two factual

scenarios. First, aggregation of value of stolen property taken in separate thefts

is permitted when separate acts of theft are: (1) from the same owner; (2) from

the same location; and (3) are pursuant to continuing criminal impulse or a

single sustained larcenous scheme. State v. Byrd, ___ S.W.2d ___, ___ (Tenn.

1998). Where these elements are present, aggregation is permitted under both

the theft of property statute and the theft of services statute. See generally

Tenn. Code Ann. § § 39-14-103, -104. Second, aggregating the value of stolen

property taken from different owners is permitted under the theft of property

statute when a defendant exercises simultaneous possession or control over

stolen property belonging to different owners. Byrd, ___ S.W.2d at ___. The

defendant's alleged thefts in count I were from different owners. Accordingly, the

question now before us is whether the theft of services statute permits

aggregating the value of stolen services taken from different owners.



       Unlike the theft of property statute, the theft of a service under Tenn Code

Ann. § 39-14-104(1) may only be accomplished by "obtaining" the service and

does not incorporate an "exercising control over" provision similar to that found in

the theft of property statute. Compare Tenn. Code Ann. § 39-14-103 (stating



                                         5
"obtains or exercises control over the property") with Tenn. Code Ann.

§ 39-14-104 (stating "obtains services by deception"). In Byrd, we held that the

"exercises control over" language in the theft of property statute permits

aggregating the value of property taken from different owners. The absence of

such language in the theft of services statute precludes aggregation of the value

of services taken from different owners. Accordingly, the second scenario

permitting aggregation where a defendant exercises simultaneous possession or

control of property belonging to different individuals is inapplicable to theft of

services under Tenn. Code Ann. § 39-14-104(1).



       While the defendant's actions were arguably a part of a continuing

scheme, each uttering of a worthless check to a different individual was an

independent or separate transaction sufficient to support separate indictments.

Only separate utterings to the same individual pursuant to a single larcenous

scheme may be aggregated in the case now before us. We, therefore, hold that

count I improperly aggregated separate crimes under the theft of services

statute.



                               COUNTS II, III AND IV



       Count II, III and IV did not aggregate the value of property for purposes of

establishing the grade of the offense. The trial court dismissed these counts

based on a finding that there was no proof of criminal intent. The Court of

Criminal Appeals reversed the trial court, eloquently and succinctly stating:



              It is not the purpose of either the indictment or the bill of
       particulars to adequately prove the crime or to elect among
       alternative legal theories for the theft such as deception, fraud, or
       coercion. The complex nature of the facts underlying these
       offenses may present a significant burden to the state during the
       course of the trial; the charging instrument, however, is not


                                          6
       defective. At the conclusion of the proof by the state, it may be that
       the defendant is entitled to a judgment of acquittal . . . Yet a
       dismissal of the indictment at this time would not be warranted.
       The state must be allowed to proceed.



We agree with the appellate court's holding on this issue.



                                   CONCLUSION



       Count I is dismissed for improperly aggregating the value of services

allegedly stolen from different individuals under Tenn. Code Ann. § 39-13-104.

The trial court 's order dismissing counts II, III and IV is set aside, and the

indictment is reinstated on those counts. The case is remanded to the trial court

for further proceedings. Costs of this appeal shall be taxed equally to the State

and to the defendant, Joseph Cattone, for which execution may issue if

necessary.




                                    Janice M. Holder, Justice



PANEL:

Anderson, C.J.
Drowota, Reid, Birch, J.J.




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