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State v. Gentry

Supreme Court of Tennessee, Jackson

November 29, 2017


          Session June 1, 2017

         Appeal by Permission from the Court of Appeals Shelby County Criminal Court Hon. James M. Lammey, Judge

         The primary issue in this appeal is whether Tennessee's theft statute, Tennessee Code Annotated section 39-14-103, encompasses theft of real property. The defendant physically entered and occupied for over a week a vacant East Memphis house valued at more than two million dollars and filed documents with the Shelby County Register of Deeds Office purporting to reflect her ownership of the property. A jury convicted the defendant of theft of property valued at over $250, 000 and aggravated burglary. The defendant challenges her convictions, arguing that Tennessee's theft statute does not encompass theft of real property. We conclude that our theft statute applies to theft of real property by occupation, seizure, and the filing of a deed to the property and that the evidence is sufficient to support the defendant's convictions. We also reject the defendant's arguments that the trial court improperly limited her cross-examination of a prosecution witness and her closing argument. Accordingly, we affirm the judgment of the Court of Criminal Appeals upholding the defendant's convictions and remanding to the trial court for resentencing.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed; Case Remanded to the Trial Court for Resentencing

          Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Tabitha Gentry, a/k/a, Abka Re Bay.

          Herbert H. Slatery III, Attorney General and Reporter, Jeffrey D. Zentner, Assistant Attorney General, Amy P. Weirich, District Attorney General; Byron Winsett and Samuel D. Winnig, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Cornelia A. Clark, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Sharon G. Lee, Holly Kirby, and Roger A. Page, JJ., joined.



         I. Factual and Procedural Background

         The defendant, Tabitha Gentry ("Defendant"), was indicted by a Shelby County Grand Jury for theft of property valued at over $250, 000 and aggravated burglary. These charges stemmed from Defendant's seizure and physical occupation of an East Memphis home, which occurred over the course of one week at the beginning of March 2013. Defendant's jury trial occurred from April 20 to April 23, 2015. The following is a summary of the proof offered at trial.

         On August 26, 2011, Renasant Bank ("Bank") foreclosed on the East Memphis home. Gregory Hadaway, an executive vice president at the Bank, assigned Greg Paule, the person in charge of managing the Bank's foreclosed homes, to prepare the home for sale. The home, situated on a three-and-a-half acre gated property, was described by various witnesses at trial as having seventeen rooms, 10, 000 square feet of very nicely finished interior space, two fireplaces, a well-manicured exterior with expensive landscaping and a swimming pool, and a four-car garage. Mr. Paule, acting for the Bank, contracted with a real estate agent, John Dickens, to show the home and find a buyer. By February of 2013, Mr. Dickens had sold the home for $2.4 million dollars and scheduled the closing for later that month. The closing was rescheduled to March 29, 2013, to allow the Bank time to make repairs called for by a home inspection report.

         Meanwhile, as the Bank worked to finalize the sale, Defendant worked to acquire the property without purchasing it. On February 25, 2013, Defendant filed twelve pages of difficult to decipher documents with the Shelby County Register of Deeds. The first of these documents is a January 14, 2012 letter addressed to the Bank's executives, including the Bank president, Jeff Hudson. The document is an "Affidavit of Fact" and "Cover Letter" for a mailing giving notice of Defendant's intentions as to the East Memphis home, although it is not clear that she ever sent the letter to Mr. Hudson or the other people listed as recipients. Defendant also filed a document titled "quitclaim deed" that purported to transfer title of the East Memphis home to Defendant, using Defendant's alias-Abka Re Bay.[2] Because the documents Defendant filed were so anomalous, the employee receiving them at the Register's office indexed them under "miscellaneous" in the computer system and linked them with Defendant's name, rather than indexing them as a genuine transfer of ownership of the East Memphis home.

         By March 4, 2013, Defendant had entered the East Memphis home without the Bank's consent or knowledge and changed the locks. She had placed a large chain and padlock on the front gate that was positioned across the driveway to the property. She also had posted six signs, advertising "No Trespassing, " "Private Property, " and "Keep Out" on trees around the property. On at least two of those signs, she hand wrote her name. In addition to the chain, she also placed on the gate a flag for the "Moorish National Republic, " apparently with a star in the center like the Moroccan national flag, and a sign stating, "I Abka Re Bay, seize this land" for the "Moorish National Trust."

         Mr. Dickens, who regularly checked on properties he was selling, discovered the signs, flag, chain, and padlock when he drove by the East Memphis home on March 4, 2013. Mr. Dickens had not given anyone permission to place the items on the property, and he had not seen them there when he had passed by the property only a couple of days earlier.

         Mr. Dickens stopped to investigate and called Mr. Paule to notify him about what was happening at the home. Mr. Paule called his boss at the Bank, Mr. Hadaway, because the house was a large asset on the Bank's books. At Mr. Hadaway's direction, Mr. Paule called the police and drove to the property, where Mr. Dickens was waiting, arriving around 3 p.m. Shortly after Mr. Paule arrived, both he and Mr. Dickens saw a woman briefly leave the house and then run back inside. They saw someone peer from a window and yell something unintelligible as the woman headed towards the house. A few minutes later, they saw two younger people come out of the house for only a few seconds and then jump back inside. At about 4 p.m., the Memphis City police arrived, took pictures of the gate, and made note of the "No Trespassing" signs.

         By the time the police had spoken with Mr. Dickens and Mr. Paule and prepared a written report, it was nearly dark, and the police decided not to approach the house at that time because of safety concerns. The officers told Mr. Paule to call the police the next morning to discuss the situation. Mr. Paule spoke with his boss at the Bank and the Memphis City police again the next day and the police suggested that Mr. Paule also call the FBI, which he did. The FBI declined to become involved at that time. Later, Mr. Paule and Mr. Dickens went to the Memphis police station in person. Mr. Dickens had checked on the house again that morning and noticed a white car driving up the driveway to the home. The Bank president, Mr. Hudson, had become interested in the situation and also attended the meeting at the police station where it was decided that the Bank needed to give the occupants of the home twenty-four hours' notice to vacate. Mr. Hudson, Mr. Dickens, and Mr. Paule went to the house and placed a written notice to vacate, signed by Mr. Hudson, on the gate, which read:

March 5, 2013 (2:30) p.m.
This is your formal notice to vacate this property . . . within 24 (twenty four) hours from date and time above.
You must have vacated this property by March 6th, 2013 at 2:30 p.m.

         The next day, March 6th, Mr. Paule planned to go to the home and have the utilities turned off, but his plans changed after he received information from an attorney for the City of Memphis. Although the record does not contain direct testimony about their conversation, a discussion during Defendant's trial between the trial judge and counsel for both parties outside the presence of the jury suggests that Mr. Paule learned from this attorney that Defendant was under FBI investigation because of threats she had made against the President of the United States. Seemingly as a result of concerns related to those threats, the Shelby County Sheriff's Office became involved and decided to enter the house with a Special Weapons and Tactics ("SWAT") team to arrest Defendant for the home occupation.

         On March 7th, Mr. Paule gave the Shelby County Sheriff's Office plans to the house in preparation for an arrest at the house. Late that night or early the next morning a SWAT team from the Sheriff's Office approached the house and waited by a wall on the back side of the property. As the SWAT team prepared to enter the property, they saw a white car leave through the front gate and radioed a command post that the car was leaving the house. Sergeant Richard Almond III, with the Sheriff's Office, received the call, followed the white car, pulled it over, and arrested Defendant, pursuant to an arrest warrant, about a quarter mile away from the entrance gate to the house. By the time of Defendant's arrest, at least three camera crews for news outlets were reporting from outside the home.[3]

         The SWAT team, believing that others were inside the home, entered the property after Defendant left and attempted to open a door to the house with a key they had received from the realtor. Because Defendant had changed the locks, they could not gain entry with the key, so the SWAT team used a battering ram to break the door open. Once inside, they discovered the house was empty, so the SWAT team left.

         Sergeant Brad Less, with the Sheriff's Office, searched the house pursuant to a warrant on March 7, 2013, and took photographs as he did so. He discovered that interior doors had been tied shut with ropes and belts. He found clothing, food, a few air mattresses, official documents under the name of Tabitha Gentry, and "Moorish sovereign documents" issued to "Abka Re Bay, " along with other small personal and miscellaneous items. According to the testimony of Mr. Paule, "there was not a great deal of damage" to the East Memphis home, although the door the SWAT team had battered had to be repaired, locks had to be changed, and the home had to be cleaned. Evidence and testimony at trial showed that the home sold for over $2 million on March 29, 2013, shortly after Defendant's occupation of the house, and had been appraised, for county tax purposes, at $2.75 million in 2012 and $3 million in 2013.

         Defendant chose not to testify at trial, at least partly based on her belief that she was "not subject to [the] futile jurisdiction" of the trial court.[4] The jury convicted Defendant of theft of property valued at $250, 000 or more, a Class A felony, and aggravated burglary, a Class C felony. The aggravated burglary conviction was based on Defendant's intent to commit the theft of the real property when she entered the same house. See Tenn. Code Ann. §§ 39-14-401 to -403 (2014 & 2017 Supp.). On May 27, 2015, the trial judge imposed a twenty-year sentence for the theft conviction and a three-year sentence for the aggravated burglary conviction and ordered these sentences served concurrently to each other but consecutively to Defendant's sentence in another case arising in Shelby County.

         Defendant appealed, alleging that: (1) the evidence is insufficient to support her convictions for theft and burglary; (2) the trial court improperly limited cross-examination of a prosecution witness on the subject of adverse possession; (3) the trial court improperly prohibited Defendant from discussing adverse possession in her closing argument; and (4) the trial court erred in ordering consecutive sentencing. The Court of Criminal Appeals affirmed Defendant's convictions and sentences, reversed the trial court's ruling ordering the sentences served consecutively to the sentence imposed in another case arising in Shelby County, remanded the case for resentencing, and affirmed the trial court's judgments in all other respects. State v. Gentry, W2015-01745-CCA-R3-CD, 2016 WL 4264266 (Tenn. Crim. App. Aug. 12, 2016), perm. app. granted (Dec. 14, 2016). Defendant then filed an application for permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, which we granted. Because the State did not appeal the Court of Criminal Appeals' ruling on the issue of consecutive sentencing, that issue is not before us.

         II. Standards of Review

         The primary issue in this appeal is whether Tennessee's consolidated theft statute encompasses the offense of theft of real property, and if so, whether theft has been committed based on the facts in this case. Statutory construction is a question of law which we review de novo and to which the following familiar rules apply. Our primary objective when construing statutes is to determine and carry out legislative intent without broadening or restricting statutes beyond their intended scope. State v. Pope, 427 S.W.3d 363, 368 (Tenn. 2013). The power to define criminal offenses and assess punishments for crimes is vested in the legislature. State v. Burdin, 924 S.W.2d 82, 87 (Tenn. 1996). It is not the role of this Court to substitute its own policy judgments for those of the legislature. Frazier v. State, 495 S.W.3d 246, 249 (Tenn. 2016). We always begin with the words the General Assembly has used in the statute. Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512, 517 (Tenn. 2014). When the statutory language is clear and unambiguous, we apply its plain meaning, understood in its normal and accepted usage. Id. Where statutory language or a statute's meaning is ambiguous, we determine legislative intent by considering the overall statutory scheme, the legislative history, and other sources. Id.

         Familiar principles also guide our determination of whether the evidence is sufficient to support Defendant's conviction. To begin, "we examine the relevant statute(s) in order to determine the elements" of the offense that must be proven by the prosecution beyond a reasonable doubt. State v. Stephens, 521 S.W.3d 718, 723-24 (Tenn. 2017) (citing State v. Smith, 436 S.W.3d 751, 761-65 (Tenn. 2014)). Having identified the elements of the offense, we determine, "'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A guilty verdict removes the presumption of innocence and replaces it with a presumption of guilt; thus, on appeal a defendant bears the burden of demonstrating why the evidence is insufficient to support the conviction. Id. (citing State v. Parker, 350 S.W.3d 883, 903 (Tenn. 2011)). The State is afforded the strongest legitimate view of the evidence presented at trial and any reasonable and legitimate inferences that may be drawn from the evidence. Id. (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). "The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact." State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). "This Court neither re-weighs the evidence nor substitutes its inferences for those drawn by the jury." Wagner, 382 S.W.3d at 297 (citing Bland, 958 S.W.2d at 659)).

         III. Analysis

         A. Does Tennessee's 1989 consolidated theft statute encompass theft of real property?

         1. The ...

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