Session June 1, 2017
by Permission from the Court of Appeals Shelby County
Criminal Court Hon. James M. Lammey, Judge
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
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Criminal Appeals Affirmed; Case Remanded to the Trial Court
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.
CORNELIA A. CLARK, JUSTICE
Factual and Procedural Background
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
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
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
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
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."
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.
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"
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
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
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.
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.
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.
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.
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. 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.
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.
Standards of Review
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.
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)).
Does Tennessee's 1989 consolidated theft statute
encompass theft of real property?