        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   July 20, 2010 Session

           STATE OF TENNESSEE v. VICTORIA NICOLE SPICER

                     Appeal from the Circuit Court for Dickson County
                      No. 22CC-2008-CR-873 Robert Burch, Judge



                  No. M2009-02270-CCA-R3-CD - Filed October 19, 2010


The Dickson County Grand Jury indicted Appellant, Victoria Spicer, for one count of theft
of property worth more than $500 but less than $1,000 and one count of criminal trespass.
At the conclusion of the State’s proof, the State conceded that the evidence was insufficient
to support a conviction for criminal trespass. At the end of trial, the jury convicted Appellant
for one count of facilitation of theft, for property worth $500 or less. The trial court
sentenced Appellant to six months in the county jail. On appeal, Appellant argues that her
conviction cannot stand because theft of property worth $500 or less is a misdemeanor and
the crime of facilitation under the statute applies only to felonies. The State concedes that
facilitation of a misdemeanor is not a crime under the Tennessee statutory scheme. After a
review of the record and the statute, we conclude that facilitation of a misdemeanor is not a
crime under the statutes of Tennessee. Therefore, Appellant’s conviction must be reversed
and dismissed.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed
                                  and Dismissed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which A LAN E. G LENN and R OBERT
W. W EDEMEYER, JJ., joined.

James L. Baum, Burns, Tennessee, for the appellant, Victoria Nicole Spicer.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Dan Alsobrooks, District Attorney General, and Billy Miller, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                          OPINION

                                     Factual Background

        Appellant was indicted for one count of theft of property worth more than $500 but
less than $1,000 and one count of criminal trespass in connection with the theft of a ladder
and a washer and dryer. On June 24, 2009, the trial court held a jury trial. At the conclusion
of the State’s proof, Appellant moved for a judgment of acquittal on both counts. The State
conceded that there was insufficient proof to support a conviction for criminal trespass based
upon the evidence presented. The trial court denied the motion with regard to the theft of
property charge.

       At the conclusion of the trial, the jury found Appellant guilty of the lesser included
offense of facilitation of theft of property. The trial court asked what amount the jury had
determined for the value of the property. The jury foreman responded, “Fine of five hundred
dollars.” On July 31, 2009, the trial court filed a judgment stating Appellant had been
convicted of facilitation of theft of property over $500 as a Class A misdemeanor. The
judgment also stated that the sentencing hearing was scheduled for August 3, 2009. On
August 20, 2009, the trial court filed an amended judgment. This judgment stated that
Appellant was convicted of facilitation of theft of property as a Class B misdemeanor.
Appellant was sentenced to six months in the county jail.


                                         ANALYSIS

      Appellant presents four issues on appeal. Among these arguments is that facilitation
of misdemeanor theft of property is not a crime under the Tennessee statutes. The State
concedes in its brief that facilitation of misdemeanor theft is non-existent in the State of
Tennessee.

       Appellant was convicted of facilitation of theft of property. Tennessee Code
Annotated section 39-11-403, under which Appellant was convicted, sets out the elements
for criminal responsibility for facilitation of a felony. The statute specifically states that to
be guilty of facilitation of a felony, the defendant must know that “another intends to commit
a specific felony . . . .” T.C.A. § 39-11-403 (emphasis added). The statute makes no
reference to facilitation of misdemeanors. The plain language of the statute restricts the
crime of facilitation to felonies. We have found no support for a conviction of facilitation
of a misdemeanor.

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        Tennessee Code Annotated section 39-14-105(1) sets out that a theft of property is a
Class A misdemeanor if the value of the property is $500 or less. When asked the value of
the property stolen, the jury foreman responded to the trial court that the fine was $500. We
can only conclude that the jury determined that the value of the washer and dryer and ladder
was $500. In addition, the trial court indicated that the conviction was for a misdemeanor.
The only reasonable conclusion under these facts is that Appellant was convicted of
facilitation of a misdemeanor, which does not exist as a crime under our statutes.

       Therefore, we must reverse and dismiss Appellant’s conviction.

                                     CONCLUSION

       For the foregoing reasons, Appellant’s conviction is reversed.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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