# FILED
April 27, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COUR T OF TENNESSEE AT KNOXVILLE (HEARD AT JOHNSON CITY)

FOR PUBLICA

TION Filed: April 27, 1998

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

FOR APP ELLANTS : FOR APPELLEES : CHARLES M. CORN JOHN KNOX WALKUP PUBLIC DEFENDER ATTORNEY GENERAL AND REPORTER CLEVELAND ELIZABETH T. RYAN ASSISTANT ATTORNEY GENERAL NASHVILLE



# O P I N I O N

APPELLATE COU RT REVERSED IN PART, AFFIRMED IN PART; CASE REMANDED HOLDER, J.2 OPINION
We granted an appeal in this case to determin e whether the values of service rendered by

different individuals may be aggregated under the theft of services statute, Tenn. C ode Ann. § 39-14-104. In State v. Byrd , ___ S.W.2d ___ (Tenn. 1998), we held simul taneous possession of stolen proper ty belonging to different owners may be cons idered as one offense and the value of the property may be aggregated for purposes of establishing the grade of off ense under the theft of property statute.Our holding in Byrd , however, was l imited to theft by the exe rcise o

f contro l over

another 's property an d did not

apply t o 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 cov

er a draft he had written to a supplier for materials. Subseque ntly, he was indicted for two cou nts of th eft of s ervices an d for two counts o f theft of prope rty.
In count I of the indictment, the State alleged that the defendant committed theft of services from appr oximately thirty

-five of his employees. The indictment read, in pertinent part, that the defendant:

on or about MAY, 1991, . . . u nlawfully, feloniously, knowingly and intentio nally obta in[ed] se rvices of: [names o f thirty-f ive individuals], by us

e of deception, fraud, coercion, false p retense or other means for the purpose of avoidi ng payment for said serv ices.3 Further, that said acts w ere a continuing, crimi nal impulse or intent or were pursuant to the ex ecution 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,

. . .

Accordin gly, the ind ictment aggregate d the tot al value of the thirt y-five employees' services for purposes of establishing the grade of the of fense charged.
Count II of the indictment charg ed the defendant with theft of servi ces under Tenn. Code Ann. § 39-14-104 for fail ing to pay his UPS bi lls in May of 1991. The indictment stated that the defendant:

on or about MAY, 1991, in Pol k County, Tennessee, and before the finding of this indictment, did unlawfully, feloniously, knowingly and intentionally obtain ser

vices of UNITED PARCEL S ERVICES (UPS) by use of deception, fr aud, coercion, false pretense or other means for the purpose of avoiding payment for said services. Said services are val ued at more than ONE THOUSAND AND 00/100 DOLLARS ($ 1,000.00), in v iolation of T.C.A. 39-14-104, all of which is against the peace and dignity of the Stat e of Tennessee;
In charging the defendant w ith theft of property under Tenn. Co de Ann. § 39-14-103, count III stated that :
on or about MAY, 1991, in Pol k County, Tennessee, and before the finding of this indictment, [the defen dant] did unlawfully, feloniously and knowingly ex

ercise control over

property, to-wit : personal property, over the value of FIVE HUNDRED DOLLARS ($ 500.00), of KENNETH CHASE without hi s 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.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. ( S upreme C ourt A dvancing L ega l E ducation fo r S tudents ) project. 4 Count IV charged the defendant w ith theft of property under Tenn. Co de Ann. § 39-13-103:

on or about MAY, 1991, in Pol k County, Tennessee, and before the finding of this indictment, [the defen dant] did unlawfully, feloniously and knowingly ex

ercise control over

property, to wit: personal property, over the value of FIVE HUNDRED DOLLARS ($ 500.00), of W ALTER CHA MPION COMP ANY without their ef fective consent, with intent to depr ive the said owner thereof, in violation of T.C.A. 39-14-103, all of whi ch is against the peace and di gnity of the State of Tennessee.

The defendant filed a motion to dismiss ar guing that the indictment, as described by the bill of particulars, did not all ege "any factual allegati ons amounting to a crime." Specific ally, the defendant alleged that: (1) count I improperly aggregated "numerous misdemeanors into a single felony count;" (2) counts I and II failed to descri bed the wrongdoing "al legedly perpetrated by the defendant;" and (3) counts III and IV fai led to "adequately descr ibe the goods [and] services alleg edly received by the defendant." The trial court g ranted the defendant's motion to dismiss "upon th e grounds that the facts did not support the criminal intent of theft of serv ices." The Court of Criminal Appeals reversed the trial court and reins tated the indictment on all four c ounts. We reverse the appellate court as to count I of the indictment an d affirm the appellate court's reinstatement of counts II, III and I V. 1

COUNT I5 Count I charged the defendant with theft of services for "intentionally obtain[ing] service

s." The theft of services statute is codified at Tenn. Code Ann. § 39-14-104 and provides i n relevant part:
Theft of Services. --A person commits theft of services w ho: (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 g enerally permitted under two factual scenarios. First, aggregation of value of stol en property taken in separ ate thefts is permitted when separat e acts of theft are: (1) from the same o wner; (2) from the same location; and (3) are pursuant to continuing criminal impulse or a single sustained larc

enous scheme. State v. Byrd , ___ S.W.2d ___, ___ (Tenn. 1998). Where these elements are present, agg regation 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 ow ners is permitted under the theft of property statute when a defendant exerci ses simultaneous possession o r control over stolen property belong ing to different owners. Byrd , ___ S.W.2d at ___. The defendant's alleged thefts in count Iwere from different owners. Accordingly, the question now before us is whether the theft of servic es statute permits aggregating the value of stolen services taken from different owners.
Unlike the theft of property s tatute, the theft of a service under Tenn Code Ann. § 39-14-104(1) may only be accomplished by "obtaini ng" 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 (stati ng6 "obtains or exercises control over the property") with Tenn. Code Ann. § 39-14-104 (stating "obtai ns services by dec eption"). In Byrd , we held that the "exercises control ov

er" language in the theft of proper ty statute permits aggregating the v

alue of property taken from different ow ners. The absence of such language in the theft of ser vices statute precludes aggregation of the val ue of services taken from different owners. Accordingly, the second scenario permitting aggregation where a defendant exerc ises simultaneous possessi on or control of property belong ing to different individual s is inapplicable to theft of services under Tenn. Code Ann. § 39-14-104(1).
While the defendant's actions were arguabl y a part of a continuing scheme, each uttering of a w orthless check to a different in dividual was an independent or separate transaction sufficient to support separate indictments. Only separate utterings to the same individual pu rsuant to a single lar cenous scheme may be aggregate d in the case now before us. We, therefore, hold that count I improperly agg regated separate crimes unde r the theft of services statute.
COUNTS II, III A ND IV
Count II, III and IV did not ag gregate the value of prope rty for purposes of establishing the grade of the offense. The trial court dismiss ed these counts based on a finding that there w as no proof of criminal intent. The C ourt of Criminal Appea ls reversed the tria l court, eloquent ly and succinctly stat ing:

It is not the purpose of either the indictment or the bill of particulars to adequatel y prove the crime or

to elect among alternative legal theories for the theft such as decepti on, fraud, or coercion. The complex nature of the facts und erlying these offenses may present a significa nt burden to the state during the course of the trial; the char ging instrument, how

ever, is not7 defective. At the conclusi on of the proof by the state, it may be that the defendant is entitled to a judg ment of acquittal . . . Yet a dismissal of the indictment at this time would not be w arranted. The state must be allowed to pr oceed.
We agree with the appellate court's holding on this issue.

CONCLUSION
Count I is dismissed for impr operly aggregati ng the value of servi ces allegedly stolen from different individuals under Tenn. C ode Ann. § 39-13-104. The trial court 's order

dismissing counts II, III and IV is set aside, and th e indictment is reinstated on those counts. The case is reman ded to the trial court for further proceedings. Cos ts of this appeal shall be tax ed equally to the State and to the defendant, Joseph Catton e, for which execution may issue if
necessa ry.

Janice M. Holder, Justice

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