### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE April 25, 2001 Sessi

on

STATE OF TENNESSEE v. ALKITA M. ODOM

Appeal from the Criminal Court for Sumner County

No. 308-2000 Jane Wheatcraft, Judge

No. M2000-02676-CCA-R9-CD - Filed May 31, 2001

This is an interlocutory appeal by the State pursua nt to Rule 9 of the Tennessee Rules of Appellate Procedure. The Defendant, Alkita M. Odom, was indicted for the offenses of forgery

and criminal simulation, each in the amount of $250,000. The indictment reflected that e

ach offense wa

s a Class B felony. Upon the Defendant’s motion, the trial court dismissed the indictment to the extent that it reflected Class B f el onies because the court found that for the crime to be anything othe r than Class E felonies, the D efendant would have had to have actually obtained goods or se rvices. The

cour t then gr anted the State’s motion to amend the indictment to reflect Class E felonies for the pur poses o f appeal. The State argues on appeal that the trial court improperly dismissed the indictmentbased on the grad e of the offens e charged. We agree. Accordingly , we reverse the dis mis sal of t he i ndi ctm ent and rei nst ate it a s or igi nal ly re tur ned by th e Gra nd J ury.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Reversed

D AVID H. W ELLES , J., delivered the opinion of the court, in which N ORMA M C G EE O GLE and A LAN E. G LENN , JJ., joined.

David A. Doy

le, District Public D

efender, Galla

tin, Tennessee, f

or the appellee,

Alkita Odom.

Paul G. Summers, Attorney General and Reporter; David H.Findley, As sistant Attorney General; Lawrence Ray Whitley, District Attorney General; and

J. Craig Myrick, Assistant District Attorney General, for the appellant, State of Tennessee.

OPINION

In a four-count

indictment, the Sumner County Grand Jury charged the Defendant

with one count of forgery and three counts of criminal simulation. Only the count of forgery and one count of criminal simulation are at issue in this case. The count of forgery alleg ed that the Defendant didunlawfully and with intent to defraud anothe r of the s um of $250,000.00, utter and publish to Sun Trust Bank a certain forg

ed writing, to wit: a check number 4606,-2-

datedFebruary 28, 2000, in the amount of $250,000.00, made payable to [the Defenda nt], purportedly signed by another , for the payment of money dra wn upon the Sun Trust Bank, and [the Defendant] well knew at the time of the utter ing of the aforesaid writing that the purported signature on said check as dr awer thereon was
notauthorized by the owner, against the peace and dignity of the State of

Tennessee.

The count of crimi

nal simulation at issu

e then alleged

that the Defenda

nt did, with intent to defr

aud another, unla

wfully, know

ingly and f

elonio usl y possess
a check wh ich had b een made so that it appeared to have a value of $250,000.00, which it in fact did not have, wit h intent to pass or otherwise utter it, against the peace and dignity of the State of Tennessee.

The indictment indi

cated that both of

these offenses w

ere Class B felo

nies.

The Defendant filed

a motion for a bill of particulars, which motion was granted by the trial court, asking the State

to reveal the nature and

value of property or services allegedly obtained by the Defendant

for each count of the indictment. The State responded that the Defendant obtained

no goods or services in any of the c ounts. The Defendant then filed a motion to dismiss the two
counts charging Clas s B felonies or, in the alternative, to a

mend those counts to

reflect Class E felonies. Both forgery and criminal simulation provide that the offense is “pun ishabl e as theft pursuant to § 39-14-105, but in no event shall [the offense] be less than a Class E felony.” See Tenn. Code Ann. §§ 39-14-114(c), -115 (c) . The theft statute then grades the

ft from a Class A misdemeanor

to a Class B felony depending on “the value of the property or services obtained.” Id. § 39-14-105. The Defendant asserted that becaus e forg ery and cr iminal simulation ar

e both “punishable

as theft,” the Defendant c ould never be gu

ilty of any

thing more than a

Class E felony because she received no property or services. The State countered with the arg ument that

whether

a de fend ant act ual ly ob tai ns p rop ert y or s ervi ces i s ir rel evan t be caus e th e cri mes of f orge ry an d criminal simulation do not require the actual receipt of property or services. The trial court agreed withthe Defendant and granted the Def end ant’s motion, which ultimately resulted in the current appeal.

Th e issu e before this Cour t is essentially

one of statutory

construction. “T

he most basic principle of statuto

ry construction is to ascertain and give effect to the legislative intent without unduly restricti ng or expand ing a statute’s coverage beyond its intended scope.” Owens v. State , 908 S.W.2d 923, 926 (Tenn. 1995). This Court is to determine legislative intent “from the natural and ordinary meaning of the statutory

language within the context of the entire statute without any forced

or subtle constructio

n that would extend or

limit the statute’s me

anin g. ” State v. Flemming , 19 S.W.3d 195, 197 (Tenn. 2000). Moreover, the legislature ha s provided that cr

iminal statutes are

to “be construed according to the fair import of their terms, including reference to judicial decisions and common law interpretations, to promote justice, and effect the objectives of the criminal code.” Tenn. Co de Ann. § 39-11-104; see also State v. Owens , 20 S.W.3d 634, 640 (Tenn. 2000). The Court“will not apply a particul ar interpretation to a statute if that interpretation would yield an absurd result.” Flemming , 19 S.W.3d at 197.-3-

The natural and ordinary meaning of the language in both the forgery a nd criminal simulation
statutes clearly indicates

that the crimes of

forgery and criminal simula

tion are complete

whether or
notthe defendant receives any property or services. A person

commits the offense of forgery when that person “for ges a writing with intent to defraud or harm another.” Tenn. Code Ann. § 39-14- 114(a). The term “forge” means to (A) Alter, make, complete, execute or authenticate an

y writing so

that it purports

to: (i) Be the act of

another who did no

t authorize that ac

t; (ii) Have been executed at a time or place or in a numbered sequence other than was in fact the case; or (iii) Be a copy of an original when no such orig inal existed; (B) Make false

entries in books or

records; (C) Issue, transfer, register the transfer

of, pass, publish, or otherwise utter a writing that is forged within the meaning of subdivision (1)(A); or (D) Possess a writing

that is forged w

it h in the meaning of

subdivision (a)(1 ) with intent to utter it in a manner specified in subdivision (1)(C)[.]

Id. § 39-14-114(b). Thus, forgery “is complete by the forgery with fraudulent intent, whether any third person be actually injured or not. ” State v. James , 688 S.W.2d 463, 466 (Tenn. Crim. App. 1984); see also State v. Lisa Ann Bargo
, No. E1999-00156-CCA-R3-CD, 2000 WL 1586466, at *4 (Tenn. Crim. App., Knoxville, Oct. 25, 2000). Similarly, thecriminal simulation statute provides, in relevant part

, (a) A person commits an offense of criminal simulation who: (1) With intent to defraud or harm another: (A) Makes or alters an object, in whole or in part, so that it appears to have value because of age, antiquity, rarity , source, or authorship that it does not have; (B) Posses ses an ob

ject so made or altered, with intent to sell, pass, or otherwise utter it; or (C) Authenticates or certifies an object so made or altered as genuine o r as different from what it is[.]

Tenn. Code Ann. § 39 -14-115. Again, there is no requirement that the person committing the offense receive any

thing in return. N

evertheless, bot

h statutes provide th at the offense “ is punishable

as theft pursuant to § 39-14-105, but in no event shall [the offense] be less than a Class E felony.” Id. §§ 39-14-114(c), -115(c).

A person commits the off ens e of 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 effectiveconsent.” Id. § 39-14-103. Additionally , a person commits the offense of theft of services who: (1) Intentionally

obtains services

by deceptio

n, fraud, coerc

ion, false prete

nse or any other means to avo

id payment f

or the services;-4-

(2) Having control over

the disposition of se

rvices to others,

knowingly

diverts those services to the person’s own benefit or to the b enefit of another not entitled thereto;

or (3) Knowingly

absconds from est

ablishme nts where compen sation for servic

es is ordinarily paid i mmediately upon the rendering of them, including, but not limited to, hot els , mo tel s an d res tau rant s, w ith out paym ent or a b ona fid e off er t o pa y.

Id. § 39-14-104. Clearly, an essential element of both theft of property and theft of services is the receipt of property or services.

In setting the punish

ment for theft, the

legislature es

t abli shed different classifications or grades depending on the value of the property or services obtained. Thus, theft of property and/or services is: (1) A Class A misdemeanor if the value of the property or services obtained is five hundred dollars (

$500) or less; (2) A Class E felony

if the value of the

property or

services obtaine

d is mo re than five hundred dollars ($500) but less than one thousand dollars ($1,000); (3) A Class D felony

if the value of the property or services obtained is one thousand dollars ($1,000) or more but less than ten thousand dollars ($10,000); (4) A Class C felony if the value of the property or services obtained

is ten thousand dollars ($10,000) or more but less than sixty thousand dollars ($60,000); and (5) A Class B felony

if the value of the

property or

services obtaine

d is sixty thousand dollars ($60,000) or more.

Id. § 39-14-105.

Under the Defendant’s inte

rpretation of the

se statutes,the provisions providing that forgery and criminal simulation be punished as theft actually add an additional element to the crimes if the crimes are to be anything higher than Cla ss E felonies. The Defendant asserts that forgery and criminal simulation are both E felonies, but if the person c ommitting the crimes actually obtains goods or services, the

crimes could be a

s serious as B felonies, depending on the value of the goods

o r services obtained. Thus, if a defendant forged a check in the amount of $300,000 but wa s unsuccessful at his or her attempt to cash that check, that defendant would have committed the same degree or grade of forgery

as a defendant who forged a check for $10 but was unsuccessful at cashing the check. Furthermore, a defendant who fo

rged a check i

n the amount of $300,000, received money from the bank, and then

was arrested as he or she exited the bank could be convicted of a Cla

ss B fel ony, while a

defendant who forged a check for the same amount, tried to cash it, and was arrested prior to receiving anymoney could only be conv

icted of a Class E f

elony. Also,

under this interpretation, it appears that a defendant who was unsuccessful at his or her attempt to cash a check for $300,000 could be charged with attempted forgery, rather than the actual offe nse of forgery, and be convicted of a

Class C felony

, because an att

empt to commit a crim

e is one classification lower than the most serious crime attempted. See id. § 39-12-107(a). This seems to us to be an absurd result.-5-

From reading the theft statutes, i t is cl ear that the legislature intended to punish theft according to t he seriousness of the actions of the offender. The legislature determined that it was

more serious to commit theft of over sixty thousand dollars of property or services

than to commit theft of less than five hundred dollars of property or services. See id. § 39-14-105. Thus, the former

was determined to be a Class B felony while the latter was determined to be a Class A misdemea nor. See id. By asserting

that forgery and criminal simulation are “punishable as theft,” we believe that the legislature intended to punish those offenses according to the seriousness of actions o f the offender. Although the theft statute referenced by the forg e ry and criminal simulation statutes grades the crime of

theft according to the “value of the property or services obtained,” we believe that the
term“obtained” rela

tes only to the

crime of theft, w

hic h r equires the actual receipt of property or services. See id. §§ 39-14-103 to -105. The crimes of forgery and criminal simulation do not require actual receipt of prope

rty or serv

ices, therefor

e the seriousness

of the offense sh

ould not depend on the value of the prop

erty or ser vices actually

received. See id. §§ 39-14-114, -115. It can hardly be disputed that it is more serious to forge a writi ng in the amount of $300,000 with the int

ent to defraud or harm another t

han it is to forge a writing in the amount of $10 with the intent to defraud or harm another. See id. § 39-14-114(a). Likewise, it is more serious to, with intent to defraud or harm another, make or

alter an object s

o that it appears to be worth $300,000, when it does not have that value, or possess

such an object wit

h the intent to

sell, pass, or

otherwise utter i

t, rather than to do the same with an obj e ct appearing to be worth $10. Therefore, we believe that the legislature intended to punish both forgery and criminal simulation according to t he apparent value of the writing forged or the o

bject made or alte

red. The refer

ences to the theft statute then requiregrading the crimes of forgery and criminal simulation according to the appa

ren t value of the writing or object, using the values set forth in the theft grading statute. See id. §§ 39-14-105, -114(c), -115(c).

Acco rdi ngly, we hold that the indictmentcharging the Defendant with forgery in the amount of $250,000 and criminal simulation in the amount of $250,000 p roperly ch arged the Def

endant with
two Class B felonies.

The trial court th

us erred by

dismissin g th e indictment to the e xtent that it reflected Class B felonies and by amending the indictment to ref lec t Class E felonies due to the State’s admission that the Defendant received no property or services. The refore, we reverse the order of the trial court

dismissing and ame

nding the indictme

nt and reinst

ate the indictment as originally charged.

___________________________________ DAVID H. WELLES, JUDGE