State v. ByrdState v. Byrd
- Reporters:
- , ,
- Before:
- Holder Justice., Anderson, Drowota, Birch, Reid
We granted this appeal to address the validity of an indictment that
aggregates, under
BACKGROUND
This case involves the theft of $ 2,644.92 in merсhandise taken from nine separate merchants located in the Pigeon Forge area. The defendant, Barbara Ann Byrd, and three other individuals, Robbie Pоole, Janie Carlton and Richard Devon Ewing, embarked on a journey to Pigeon Forge during which they planned to systematically steal merchandise from variоus 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 *3 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 merсhandise into a shopping bag. They would leave the store without paying for the merchandise. The stolen merchandise was then placed into the trunk of thе 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
*4
The defendant raises а 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
Aggregation of separate thefts is generally permissible where separate larcenous acts are: (1) from the same owner[s]; (2) from the same location; and *5 (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, thе 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 prоperty belonging to different owners.
In 1989, the legislature eliminated the antiquated and confusing
distinctions among various larceny-related crimes by opting for a singlе theft of
property statute that embodies separate theft-related offenses. See
A person commits theft of property if, with intent to deprive the owner of property, the person knowingly obtains or exerсises control over the property without the owner‘s effective consent.
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
In cases factually similar to Goins, it defies logic to prohibit аggregation 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 сonsent and with the intent to deprive is
guilty of a Class D felony.
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 indicatеd that she had simultaneous access to or control over the property without consent. The evidence further indicated that the defendant intendеd 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 fаcially 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
Notes
[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. ( S upreme C ourt A dvancing L egal E ducation for S tudents ) project. 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 stolеn property was taken from nine different owners.
[2] The Court of Criminal Appeals held that the prosecutor acted
properly within his discretion in charging оne count of theft over $ 1,000.00 under
[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.; miscellaneоus 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 valuе 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 proр 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 statutо 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