                 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


                                            5
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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