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State of Tennessee v. Tabitha Gentry (AKA ABKA RE BAY)
Citation: Not availableDocket: W2015-01745-SC-R11-CD
Court: Court of Appeals of Tennessee; November 28, 2017; Tennessee; State Appellate Court
Original Court Document: View Document
The Supreme Court of Tennessee addressed the case of State of Tennessee v. Tabitha Gentry, focusing on whether Tennessee's theft statute (T.C.A. § 39-14-103) applies to the theft of real property. Gentry was convicted of theft of property valued over $250,000 and aggravated burglary after she occupied a vacant, high-value home in East Memphis for over a week and filed documents claiming ownership. Gentry appealed, arguing that the statute does not cover the theft of real property. The court concluded that the theft statute does encompass theft by occupation and filing of a deed, affirming her convictions and rejecting her claims regarding limitations on cross-examination and closing arguments. The court upheld the Court of Criminal Appeals' judgment and remanded the case for resentencing. The factual background details that Gentry seized the property following its foreclosure by Renasant Bank, which was preparing for a sale after a scheduled closing was postponed for repairs. On February 25, 2013, the Defendant submitted a collection of ambiguous documents to the Shelby County Register of Deeds, including a January 14, 2012 letter intended for Bank executives and an "Affidavit of Fact" regarding her intentions for the East Memphis home. It remains unclear whether this letter was sent to the intended recipients. The Defendant also filed a "quitclaim deed" that claimed to transfer ownership of the East Memphis home to herself under the alias Abka Re Bay. Due to the unusual nature of these documents, the Register's office classified them as miscellaneous, rather than as a legitimate transfer of property. By March 4, 2013, the Defendant unlawfully entered the home, changed the locks, and secured the property with a chain and padlock. She posted multiple signs declaring the property as “No Trespassing” and “Private Property,” with some signs featuring her name. Additionally, she displayed a flag associated with the "Moorish National Republic" and a sign claiming ownership under the "Moorish National Trust." Real estate agent Mr. Dickens discovered these alterations during a routine check and reported the situation to Mr. Paule at the Bank. Following their assessment, Mr. Paule contacted the police, who arrived later that day but opted not to approach the house due to safety concerns. The police suggested contacting the FBI, who declined involvement. The following day, Mr. Paule and Mr. Dickens visited the police station to report further developments, including an observed vehicle at the home. Bank president Mr. Hudson became involved, and together with Mr. Dickens and Mr. Paule, they placed a formal notice to vacate on the gate of the property, providing the occupants with a deadline of March 6, 2013, at 2:30 p.m. to vacate. On March 6, Mr. Paule intended to turn off utilities at a property but was informed by a City of Memphis attorney that the Defendant was under FBI investigation due to threats against the President. Consequently, the Shelby County Sheriff’s Office planned to arrest the Defendant using a SWAT team. On March 7, Mr. Paule provided the Sheriff’s Office with plans for the house. A SWAT team waited to enter the property but spotted a white car leaving, which led to Sergeant Richard Almond III arresting the Defendant about a quarter mile away. Media crews were reporting outside the home during the arrest. After the Defendant left, the SWAT team attempted to enter the house but had to use a battering ram due to changed locks. They found the house empty but noted interior doors tied shut and discovered personal items including clothing and documents associated with other identities. Although there was minimal damage, repairs were necessary. The home sold for over $2 million shortly after the Defendant's occupation. The Defendant did not testify at trial, believing she was not under the court's jurisdiction. The jury convicted her of theft (over $250,000, a Class A felony) and aggravated burglary (a Class C felony), with the latter linked to her intent to commit theft. On May 27, 2015, she received a twenty-year sentence for theft and a three-year sentence for aggravated burglary, to be served concurrently but consecutively to another case. The Defendant appealed on several grounds, including the sufficiency of evidence for her convictions and alleged trial court errors regarding cross-examination and sentencing. The Court of Criminal Appeals upheld the Defendant’s convictions and sentences but reversed the trial court’s decision to impose consecutive sentences related to a separate case from Shelby County, remanding the case for resentencing while affirming all other judgments. The Defendant subsequently sought permission to appeal under Rule 11 of the Tennessee Rules of Appellate Procedure, which was granted. Notably, the State did not contest the issue of consecutive sentencing, leaving it outside the current appeal. The primary legal issue is whether Tennessee’s consolidated theft statute includes the theft of real property, alongside whether the evidence presented substantiates a theft charge based on the facts of the case. Statutory construction is treated as a legal matter reviewed de novo, with an emphasis on ascertaining and executing legislative intent without altering the statute's intended scope. The authority to define crimes and set penalties resides with the legislature, and the court avoids imposing its own policy judgments. The interpretation of statutes begins with the specific language used by the legislature. Clear and unambiguous language is applied according to its plain meaning, while ambiguous terms require consideration of the broader statutory context, legislative history, and other relevant materials. To evaluate the sufficiency of evidence supporting the Defendant’s conviction, the court reviews the pertinent statutes to identify the essential elements the prosecution must prove beyond a reasonable doubt. The evidence is viewed favorably towards the prosecution, assessing whether any rational fact-finder could establish the crime's elements. Once a guilty verdict is rendered, the presumption of innocence is replaced by a presumption of guilt, placing the onus on the Defendant to demonstrate the evidence's inadequacy. The State benefits from the strongest reasonable interpretations of the trial evidence, with the jury responsible for matters of witness credibility and the weight assigned to testimonies, as the court refrains from re-evaluating evidence or substituting its conclusions for those of the jury. The next step in the analysis addresses whether the consolidated theft statute from 1989 encompasses theft of real property. Prior to 1989, Tennessee lacked a unified definition of theft, with various outdated statutes addressing offenses such as embezzlement, false pretense, fraudulent conversion, larceny, receiving stolen property, and shoplifting, all rooted in English common law. This fragmentation faced criticism for being burdensome and arbitrary, as exemplified by historical cases highlighting indistinct lines between different theft offenses. The British Parliament began addressing these issues in the 18th century, and by the 19th century, the Virginia Supreme Court acknowledged the challenges prosecutors faced due to these vague distinctions. In the mid-20th century, the American Law Institute proposed a consolidated theft statute in the Model Penal Code, which influenced many states, including Tennessee. The Criminal Sentencing Reform Act of 1989 marked a significant change in Tennessee theft law by introducing a consolidated theft statute that integrated traditional theft offenses into a single generic definition. This statute, mirroring the Model Penal Code, defines theft as obtaining or exercising control over property without the owner's effective consent. To establish theft under Tennessee law, three elements must be proven: 1) the defendant knowingly obtained or exercised control over property; 2) the defendant lacked the owner’s effective consent; and 3) the defendant intended to deprive the owner of the property. The defendant contends that the 1989 statute should be interpreted narrowly to include only offenses recognized as theft prior to its enactment. However, the General Assembly defined "obtain" broadly, indicating it encompasses various actions beyond traditional theft, including larceny, embezzlement, extortion, and obtaining property by false pretenses. The legislature aimed to streamline theft prosecutions while also altering the definition and elements of the crime, as evidenced by changes such as the removal of the requirement for asportation in robbery cases. Importantly, prior to 1989, no Tennessee statute addressed the theft of real property, nor did any offenses included in the consolidated theft statute. Other states with similar statutes have reached comparable conclusions, affirming that the definitions and scope of theft are not confined to historical common-law categories. The critical inquiry in theft cases focuses on whether the actor had control over the property and whether that control was unauthorized. Additionally, the defendant argues that the statute only pertains to tangible, movable property, excluding real property like the house in question. Tennessee Code Annotated section 39-11-106(a)(28) defines property broadly, encompassing various forms of value, including money, real estate, and both tangible and intangible personal property. The State asserts that this definition applies to theft laws, as outlined in the Sentencing Commission Comments for Tennessee Code Annotated section 39-14-103, which emphasizes that theft of property is subject to the definitions provided in section 39-11-106. The consolidated theft statute aims to eliminate previous distinctions in theft-related offenses. Unlike the Model Penal Code, which differentiates between movable and immovable property in the context of theft, Tennessee law does not establish such distinctions. The Model Penal Code specifies that theft of movable property involves unlawful taking or control, while theft of immovable property requires unlawful transfer with intent to benefit unlawfully. Some states have adopted similar distinctions or have excluded immovable property from theft statutes, but Tennessee's criminal code does not incorporate these limitations and treats both movable and immovable property uniformly in theft definitions. Tennessee law defines "obtain" in relation to theft, specifically in Tennessee Code Annotated section 39-11-106(a)(24)(A)(i), which encompasses both the transfer of property and legally recognized interests. This definition closely mirrors the Model Penal Code's theft of immovable property but differs in that Tennessee's statute allows theft of real property to occur through obtaining or exercising control over it, without distinguishing between real and personal property. The General Assembly's intent appears to be to allow the consolidated theft statute to apply uniformly to all property types. The defendant in this case contends that the theft statute should not apply, suggesting the matter is civil in nature and that squatters are exempt from prosecution under the theft statute. However, the court emphasizes that the lack of consent from the property owner, despite civil remedies being available, is sufficient for a theft charge under the statute. The court notes that it cannot alter legislative decisions, affirming that the statute encompasses theft of real property as written. This case represents a novel interpretation of theft of real property under Tennessee law, as it typically involves fraudulent transfers of property title. The court references historical cases where theft convictions were upheld in similar scenarios involving deceitful means to acquire real property. The case involves determining whether the evidence supports Defendant’s conviction for theft of property valued over $250,000. The State demonstrated that Defendant entered a house in East Memphis, claimed ownership by posting signs, padlocked the gate, changed locks, and informed a reporter that the property belonged to her. Prior to occupying the house, Defendant filed documents with the Register of Deeds Office to assert ownership. This conduct, combined with her physical occupation of the property, constituted sufficient evidence for the jury to conclude that she exercised control over the property and intended to permanently deprive the Bank of it. Although the damage to the property was minimal and her occupation brief, the evidence was adequate to support the jury's findings. Defendant contended that theft charges were excessive for her actions, suggesting lesser charges such as criminal trespass or vandalism would have been more appropriate. However, it was concluded that decisions regarding prosecution and charges fall under prosecutorial discretion. Unlike typical squatter cases, where intent to deprive the owner may not be clear, this case presented sufficient evidence of Defendant's intent to exclude the Bank and deprive it of its ownership interest. The filing of a purported deed further distinguished her actions from those of a mere squatter. For sentencing, the valuation of the theft must adhere to Tennessee Code Annotated section 39-14-105, which defines property value based on the fair market value at the time of the offense. If fair market value of a property is unascertainable, replacement cost is used as the measure of value. In vandalism cases, repair costs determine replacement costs. If both methods fail, the property is valued at less than fifty dollars. In this case, the State provided sufficient evidence of the East Memphis house's fair market value, leading to the Defendant's conviction for theft exceeding $250,000, a Class A felony with a sentencing range of fifteen to twenty-five years. The Defendant contends that the property's rental value during her occupation should be used for grading the offense. However, Tennessee law does not permit using rental value for property theft valuation. Other states' cases where rental value was considered involved defendants who intended to defraud landlords or unlawfully collect rent, differing significantly from the current case, where the Defendant sought to take ownership. Courts have consistently used fair market value for grading theft when evidence shows intent to take ownership of real property. In Brown v. State, the Indiana appellate court upheld the defendant's burglary conviction based on evidence that demonstrated her intent to deprive the Bank of ownership of a house valued significantly over $100,000. The prosecution established fair market value through evidence that the property sold for over $2 million shortly after the defendant's arrest and had appraisals of $2.75 million in 2012 and $3 million in 2013. The court found sufficient evidence supporting the jury's verdict for theft exceeding $250,000, a Class A felony. Regarding the aggravated burglary charge, the defendant argued that her lack of theft negated the required intent to commit a felony. However, since the court had already upheld the theft conviction, this challenge was deemed without merit. Concerning the trial court's discretion, the defendant claimed it abused its power by restricting cross-examination on adverse possession and excluding it from closing arguments. The appellate court affirmed that the trial court has broad discretion over cross-examination limits and found no unreasonable restrictions. The record indicated that the defendant effectively questioned a witness about adverse possession. The prosecution's witness, a real estate agent, clarified that adverse possession does not serve as a defense to theft, and the defendant's attempts to further explore this point were met with objections from the prosecution, which the court upheld. The trial court ruled against allowing further exploration of adverse possession during the proceedings. Defense counsel was permitted to inquire if a witness knew whether adverse possession could serve as a defense to theft, to which the witness replied he did not know. The defense did not pursue further questions or provide an offer of proof regarding additional inquiries. Therefore, the assertion that the defendant was restricted in questioning about adverse possession was deemed meritless. The court allowed questions relevant to the claim of right defense, as outlined in Tenn. Code Ann. 39-14-107, but noted that the defendant's brief possession (only a week) did not meet the legal requirement for adverse possession, which necessitates years of occupancy. The trial court instructed the jury on the claim of right defense, but the jury ultimately rejected it. Additionally, the claim that the trial court improperly limited closing arguments on adverse possession was also rejected. Closing arguments are not considered evidence, and the trial court retains broad discretion in managing them. Even if there had been an abuse of discretion, the defendant did not demonstrate any prejudice resulting from the limits imposed. The jury received the necessary instructions and dismissed the claim of right defense. The judgments of the trial court and the Court of Criminal Appeals were affirmed. The issue of consecutive sentencing, which was not appealed, was remanded for resentencing in line with the appellate court's finding that consecutive sentencing was inappropriate. The costs of the appeal were assigned to the State of Tennessee due to the defendant's indigent status.