T.P.I. -- CRIM. 11.01

T.P.I. -- CRIM. 11.01

THEFT OF PROPERTY

Any person who commits the offense of theft of property is guilty of a crime.

For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following elements:¹

(1) that the defendant knowingly obtained or exercised control over

property owned by __________________;

and

(2) that the defendant did not have the owner's effective consent;

and

(3) that the defendant intended to deprive the owner of the property.

"Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.²

The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally.³

"Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.⁴

"Obtain" means to bring about a transfer or purported transfer of property or of a legally recognized interest therein, whether to the defendant or another.⁵

"Obtain" includes, but is not limited to, the taking, carrying away or the sale, conveyance or transfer of title to or interest in or possession of property.⁶

"Exercise control over property" is defined as the right to direct how property, real or personal, shall be used or disposed. Generally, one must possess the right of possession in property in order to exercise control over it. Such possession may be actual or constructive, sole or joint. Also, one may have the right to control property without having a possessory interest. In such instances, if the defendant takes some action with the intent to deprive the owner of the property, and the defendant did so knowingly and without the owner's effective consent, the jury would be justified in returning a verdict of guilty. Anyone who is in a position to take some action that deprives the owner of property is in a position to exercise control.⁷

"Property" means anything of value, including but not limited to [money] [real estate] [tangible or intangible personal property (including anything severed from land)] [library material] [contract rights] [chose-in-action] [interest in or claim to wealth] [credit] [admission or transportation tickets] [captured or domestic animals] [food and drink] [electric or other power].⁸

"Owner" means a person, other than the defendant, who has possession of or any interest other than a mortgage, deed of trust or security interest in property, even though that possession or interest is unlawful and without whose consent the defendant has no authority to exert control over the property.⁹

"Effective consent" means assent in fact, whether express or apparent, including assent by one legally authorized to act for another. Consent is not effective when:

[(a) induced by deception or coercion;] or

[(b) given by a person the defendant knows is not authorized to act as an

agent;] or

[(c) given by a person who, by reason of youth, mental disease or defect,

or intoxication, is known by the defendant to be unable to make

reasonable decisions regarding the subject matter;] or

[(d) given solely to detect the commission of an offense].¹⁰

"Deception" occurs when a person knowingly:

[(a) creates or reinforces a false impression by words or conduct,

including false impressions of fact, law, value or intention or other

state of mind that the person does not believe to be true;] or

[(b) prevents another from acquiring information which would likely affect

the other's judgment in the transaction;] or

[(c) fails to correct a false impression of law or fact the person knows to

be false and (i) the person created or (ii) knows is likely to influence

another;] or

[(d) fails to disclose a lien, security interest, adverse claim or other legal

impediment to the enjoyment of the property, whether the impediment

is or is not valid, or is or is not a matter of public record;] or

[(e) employs any other scheme to defraud;] or

[(f) promises performance which at the time the person knew he or she

did not have the ability to perform or which the person does not

intend to perform or knows will not be performed, except mere failure

to perform is insufficient to establish that the person did not intend to

perform or knew the promise would not be performed.

Promising performance includes issuing a check or similar sight order for the payment of money or use of a credit or debit card when the person knows the check, sight order, or credit or debit slip will not be honored for any reason.]

Deception does not include falsity as to matters having no pecuniary significance or puffing by statements unlikely to deceive ordinary persons in the group addressed.¹¹

"Coercion" means a threat, however communicated to:

[(a) commit any offense;] or

[(b) wrongfully accuse any person of any offense;] or

[(c) expose any person to hatred, contempt or ridicule;] or

[(d) harm the credit or business repute of any person;] or

[(e) take or withhold action as a public servant or cause a public servant

to take or withhold action].¹²

"Deprive" means:

[(a) to withhold property from the owner permanently or for such a period

of time as to substantially diminish the value or enjoyment of the

property to the owner;] or

[(b) to withhold property or cause it to be withheld for the purpose of

restoring it only upon payment of a reward or other compensation;] or

[(c) to dispose of property or use or transfer any interest in it under

circumstances that make its restoration unlikely].¹³

[The trial judge should now instruct the jury with respect to fixing the value of the property obtained. See T.P.I. CRIM. -- 11.03.]

FOOTNOTES

1. Tenn. Code Ann. § 39-14-103.

2. Tenn. Code Ann. § 39-11-106(a)(20).

3. Tenn. Code Ann. § 39-11-301(a)(2).

4. Tenn. Code Ann. § 39-11-106(a)(18).

5. Tenn. Code Ann. § 39-11-106(a)(24)(A)(i).

6. Tenn. Code Ann. § 39-11-106(a)(24)(B). "Obtain" includes, but is not limited

to, conduct heretofore known as larceny, larceny by trick, larceny by

conversion, embezzlement, extortion or obtaining property by false

pretenses. Tenn. Code Ann. § 39-11-106(a)(24)(B).

7. This language comes from the comments to the 1973 proposed Criminal

Code, Section 39-1903, page 132.

8. Tenn. Code Ann. § 39-11-106(a)(28).

9. Tenn. Code Ann. § 39-11-106(a)(26).

10. Tenn. Code Ann. § 39-11-106(a)(9).

11. Tenn. Code Ann. § 39-11-106(a)(6).

12. Tenn. Code Ann. § 39-11-106(a)(3).

13. Tenn. Code Ann. § 39-11-106(a)(8).

COMMENTS

1. Theft of property or service is graded as follows:

(a) a Class A misdemeanor if the value of the property or services

obtained is $500 or less;

(b) a Class E felony if the value of the property or services obtained is

more than $500 but less than $1,000;

$1,000 or more but less than $10,000;

(d) a Class C felony if the value of the property or services obtained is

$10,000 or more but less than $60,000; and

(e) a Class B felony if the value of the property or services obtained is

$60,000 or more.

Tenn. Code Ann. § 39-14-105.

2. "Claim of Right" may be asserted as an affirmative defense to this offense under Tenn. Code Ann. § 39-14-107. If properly raised as an affirmative defense, the trial judge should utilize T.P.I. -- CRIM. 40.13 (Affirmative defense: claim of right), which appears in the "Defenses" chapter.