# FILED
March 15, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE DECEMBER SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 03C01-9712-CR-00527 Appellee ) ) KNOX COUNTY vs. ) ) Hon. Richard Baumgartner, Judge GENE IVAN A

MANNS, )

) (The ft of Prop erty) Appellant )
For the Appellant : For the Appellee : Mark E. Stephens John Knox Walkup District Public Defender Attorney General and Repor ter Paula R. Voss Clinton J. Morgan Jamie Niland Assistant Attorney Gener al Asst. Public Defenders Criminal Justice Div ision 1209 Euclid Avenue 425 Fifth Avenue North Knoxville, TN 37921 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
Randall E. Nichols District Attorney General Scott Green Asst. District Attor

ney General City-County Buil ding Knoxville, TN 37902

OPINION FILED: REVERSED AND DISMISSED
David G. Hay

es Judge1 The appellant also rai ses as issues on appeal (1) that his sentence was exce ssive and (2) the i ntroducti on of irr elevant and prejudici al evide nce.

2 OPINION

The appellant, Gene Ivan Amanns, w as convicted by

a jury in the Knox C

ounty Criminal Court of theft of property, a class D felony. The tri al court imposed a four year senten ce of split confinement and ordered the appel lant to serve six months in j ai l 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 dispositiv e issue of whether th e 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 d ispute. 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 contr ac t price was $16,000. The termsprovided that the appellant would be paid an initial amount of $6,000, asecond paymentafter 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 deposit ed the sum of $1 ,760.57 with 84 Lum ber Comp any i n Knoxvill e for the purchase of estimated ma terials to be used in the remodeling pr oject. The appellant advised 84 Lumber that these materials were being purchased for

improvements to Ms. Reynolds’ house. The proof established that the appell ant was un der no contractual obligation to establish any

such account. Moreover, Ms. Reynolds had no possessory interest in the funds in the account.2 The record refl ects that Ms. Reynolds had obt ained a civ il j udgment in the sum of $6,000 against th e appe llant in Knox Coun ty Gener al Sess ions Co urt. 3 The app ellant began work on Aug ust 1, 1994. The first day inv olved o nly th e unloading of some materials. The followi ng day, he r eturned to M s. 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 arriv al at the Reynolds home the thi rd day, Ms. Reynolds was obviouslydispleased with the q uality of workmanship and advis ed 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. ” Followingthe exchange, the appellant loaded his tools and materials and left. No further work was

performed. Ms. Reynolds testified that she attempted to contac t the appellantby phone t hat day by le aving a mes sage on hi s recorde r. Wit hin the n ext two days, Ms. Reynolds calle d her attorney

about the matter. Approximately two days later, the appellant received a let ter from Ms. Reynolds’ attorney advising him that he was

to have no f urther contact with M s. Reynolds. At the appel lant’s request on Augus t 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, theState prosecuted the case upon the theory that the $6,000 received bythe appel lant from Ms. Reynolds co nstituted theft. At the motion for judg ment of acquittal, following the State’s proof, the appellant vigorously argued that his conduct did not consti tute a crime. 2 In denying the moti on, the c ourt rule d that th e proof wa s insufficient to support a charg e of theft for $6,000 but was sufficient to establi sh theft in the amount of $1,494.50. The case was th en submitted to the jury for theft of $1,494.50.

ANAL YSIS The appella nt was c

harged with t heft

of property pursuant to Tenn. C ode Ann.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 purp ose of the consol idated theft st atute “was t

o avoid the

pitfal ls of pl eading where a def endant might escape a conv icti on for one type of theft by proof that he had comm itted another type of theft.” Saylor , 618 P.2d at 1170. 4 § 39-14-103 (1991). 3 With the enactment of this provision, the legislature elimi nated 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 curr ent theft statute eliminated the antiquated terminology of the old, it continu es to prohibit the criminal conduct contemplated by the former theft statutes. See Sta te v . Byrd , No. 03C01- 9505-CR-00145(Tenn. Crim. App. at Knoxv ille, 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 )). I n enacting a consolidated theft statute, “the objective is to

define the crime broadly enough to include all vaguely separated theft offensesso that evidence of appropria tion byany of the f orbidden methods will support the charge.” State v. Saylor , 618 P.2d 1166, 1170 (Kan. 1980) 4 ; see also MODEL PENAL C ODE § 223.1 (19 80). Like c harity, Tennessee’s definit ion of the ft covers a multitude of sins. The distinction between the varioustheft

offens es is unimportant; the crime is complete when a person t akes property, without the owner’ s consent with the intent to deprive the owner o f the property. Thus, the charge of theft may be supported by proof of embezzlement, false pretense, fraudulent conversion and other statutory forms of lar ceny existing pr

ior to the enactment ofour current offense of theft. See Tenn. Code Ann. § 39-14-101 (1991). For purposes of instructing the jury, the

heretofore existing compl exities and historic al 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 th at his cond uct at best constitutes breach of a contractual obligation. Moreover, he argues that clearly he is not guilty o

f theft because h e obtained the sum o f $6,00 0 from Ms. Reynolds (which included the sum of $1,494.50 ) with her consent. At the trial level, the State argued5 Fraudulent br each of trust

is defi ned, in r

elevant par

t, as The fraudulent

appropriat ion of personal property

or money by anyone to whom it

has been deli vered on deposit , pledge, sequestrati on, 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, o r bail ee, or on any other contr

act or tr ust by whi ch he was bound to deli

ver or ret urn the thi ng received or its procee ds, is a fraud ulent brea ch of trus t. Tenn . Code A nn. § 39- 4226 (1 975); see alsoTenn. Code Ann. § 39-3-9 04 (1982) (repe aled 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 p remise that fu nds which have been r eceived by

a contractor

from the owner to pay

laborers or

materialmen are t rust funds. Criminality ari ses only when there is a misap pli cat ion of t hese fund s. Th e le gis lat ive purp ose i s topuni sh fo r fr audu len t co nver

sio n. 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. deni ed , 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 that the appellant occupieda 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 Re ynolds. He was in a position of trus t, and he breached that trust by

taking money which had been entrus ted to him and then converting it to hi s own use when he had no intention of

performing. The State argues, in effect, fraudulent breach of trust whi ch was recogniz ed within the family of theft offenses which existed pri or to the adoption of the 1989 criminal code. 5 In order to obtain a conviction for fraudule nt breach of t rust, the State is requi red to establish that the defend ant was bo und to de live r or return the thing received or its proceeds. As the language of the statute indicates this statute encompasses cri mes involving misappropriation of money or property delivered on deposit, mis appropriation of property for hire, mi sappropri ation of items delivered for r epair, and etc. - not construction c ontra cts involvin g the impr ovement of real p roperty. 6 In this case, the appellant’s sole contractua l obligation was t o remodel Ms. Reynolds’ basement.
Simply because a contract exist s between two p arties does not mean that a fiduciary relationship has been creat ed as was required for the prosec ution under a theory of fraudulent breach of trust. In the abs ence of any statutory author ity permitting the same, a court may not impose a fiduciary relationship between parties to a contract7 Article On e, Section 18 of the T ennes see C onstitution p rohibits im prisonm ent for de bt. 6 when none exists. To do so would convert ev

ery civil breac

h of contract into

a criminal proceeding for fraudulent breach of trust. 7 The proofin 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 def endant d id not ha ve the owner’s ef fective c onsent; and (3) th e defen dant int ended 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 re linquished all of her interest in the money. M oreover, the
rec ord is void of any proof that the appellant took po ssession of the $6,000 with th e intentto convert the money to his own use. The proof in the recor d reflects that the appellantdeposited 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 afteran exchange with M s. Reynolds over poor workmanship. On August 4 or August 5, the appellant was instr ucted by Ms. Reynol ds’ attorney not to hav e 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 al l [theft] offenses is that each i nvo lves the ‘involunt ary’ transfer of propert y [ “or of a legally recognized interest

therein,” Tenn. Code Ann. § 39-11-106(a)(24)(A)(i) (1991).],” M ODEL P ENAL C ODE § 223.1 (1980), and not the failure t o comp ly with a cont ractual obliga tion. Th e applic

ation of the theft statute must be limited in sc op e to cases defined by the statutor y language. The appellant’s conduct fails to establish th e commission of any offense recognized under7

our general theft statute. For this reason, the appellant’s conviction for theft is reversed and dismissed.

_______________________________________ DAVID G. HAYES, Jud ge

CONCUR:

___________________________________ JERRY L. SMITH, Jud ge

___________________________________ JAMES CURW OOD WIT T, JR., Judge