            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
