Sheffield v. State

• Decision Date: 21 March 1997
• Docket Number: CR-95-2038
• Citation: 708 So.2d 899
• Parties: Willie Elijah SHEFFIELD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 899

708 So.2d 899

Willie Elijah SHEFFIELD v. STATE.

CR-95-2038.

Court of Criminal Appeals of Alabama.

March 21, 1997.

Rehearing Denied Aug. 22, 1997.

Thomas Haas, Mobile, for appellant.

Bill Pryor, atty. gen., and Yvonne A. H. Saxon, asst. atty. gen., for appellee.

PATTERSON, Retired Appellate Judge.

The appellant, Willie Elijah Sheffield, was convicted in a nonjury trial of theft of property in the first degree, see § 13A8-3, Code of Alabama 1975. He was sentenced to five years' imprisonment: that sentence was split and he was ordered to spend 12 months on work release and the remainder on probation, and was fined $1,000 to go in the crime victims compensation fund.

The charge in the indictment arose from a real estate transaction between the appellant and Lillian Andrews. The property referred to in the indictment was an interest in land owned partly by Andrews. The specifics of the transaction are not germane to this appeal. ¹ We need address only one issue raised by the appellant.

The appellant claims that the trial court erred in denying his motion to dismiss his indictment, in which he argued that a parcel of land could not be the subject of a charge of theft of property in the first degree. Specifically, the appellant argues that because the location of real property cannot be changed, land does not fall within § 13A-8-1(10), which defines "property," in part, as "property (whether real or personal) the location of which can be changed." Whether an interest in real property can be a object of a theft of property appears to be a matter of first impression for this court.

The indictment specifies the property stolen as "an Interest in Real Estate." It charged that the appellant

"did knowingly obtain by deception property known to the Grand Jury as an Interest in Real Property, said property being of a value in excess of $1000 (one thousand dollars) and owned by Lillian Andrews, ... with the intention of depriving said Lillian Andrews of said property, in violation of Section 13A-8-3."

Section 13A-8-2 defines the offense of theft of property as follows: "A person commits the crime of theft of property if he: ... (2) [k]nowingly obtains by deception control over the property of another, with intent to deprive the owner of his property." Section 13A-8-1(10), defines "property" as,

"Any money, tangible or intangible personal property, property (whether real or personal) the location of which can be changed (including things growing on, affixed to or found in land and documents, although the rights represented hereby have no physical location), contract right, chose-in-action, interest in a claim to wealth, credit or any other article or thing of value of any kind."

In determining whether real property falls within this definition, we first consider the commentary to §§ 13A-8-2 through 13A-8-5, ² which states in pertinent part:

"The purpose of § 13A-8-2 is to create a unified theft offense which eradicates the common law distinctions between the crimes of larceny, embezzlement and false pretenses. The Criminal Code takes the view that these property crimes, possessing the same general nature, should not be treated as theoretically different, thus not allowing one accused of one form of theft to escape a legal sanction because of proof of a different form which interferes with property rights in essentially the same way.

"The bulk of the Alabama law of larceny was found in former §§ 13-3-50 and 13-3-51, although additional statutes existed. In the main, these deal, not with the nature and elements of larceny, but with the kind of property subject to larceny, or the circumstances of its location, or its value. Thus, common law distinctions have governed liability. Larceny is defined in Alabama as (1) the felonious (and trespassory) taking and carrying away of (2) the personal property of another (3) with intent to convert it or deprive the owner of it. Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1968)....

"....

"At common law, the subject of larceny must have been the personal goods of another. The result has been that the subject matter of larceny generally has been artificially and illogically restricted. The following were outside the scope of this crime: real property, including buildings, fixtures, things which grew on the land (trees, crops, vegetables), minerals and ores; choses in action (deeds, notes, drafts, written contracts, important letters); undomesticated animals; and intangibles. Thus, in Alabama the severing and carrying away of growing crops or trees in one continuous act was but a mere trespass, not larceny, as distinguished from a taking of severed crops, McQueen v. State, 10 Ala.App. 244, 65 So. 310 (1914) (applied Alabama Code of 1907), a result since changed by a succession of legislative changes (incorporated in former § 13-3-50).

"....

"False Pretenses:

"....

"The general Alabama statute [proscribing false pretenses], former § 13-3-90, contained broad language describing the property protected: 'any money or other personal property ....' [ ³] The Criminal Code definition is essentially the same.

"The issue posed by the Criminal Code is not whether, in a technical sense, the property is 'real' or 'personal,' but whether it is movable. If it is movable, then its location can be changed, and accordingly, it is subject to theft. If it is not movable, then it is not subject to 'obtained or unauthorized control' under the theft article. Thus, under the Criminal Code, things severed or severable from real estate (timber, crops, minerals, fixtures, etc.) and title documents are subject to theft. This provision accords substantially with Alabama law, except that in the case of growing crops it removes the necessity of proving an interval of time between their severance and their removal. Under the Criminal Code, a contemporaneous severance and manucaption would constitute theft.

"It should be noted that other contemporary criminal code revisions include as theft the transfer, or the attempted transfer, of real property as theft. Thus, a trustee holding legal title to land would be guilty of theft if he exercised 'unauthorized control' over the land by conveying it for his own personal benefit, or if a grantee by deception or by threat obtained a deed to land from his grantor. Under those proposals, a theft would have been committed, as measured by the economic loss to the victim of the transfer. Article 1 of Chapter 8 takes no position on the question. Cf. Proposed Revision Texas Penal Code § 31.07(7), Michigan Revised Criminal Code § 3201(i), Proposed New Federal Criminal Code § 1741(f)."

Confusion as to the types of property that can be the subject of theft and theft-related offenses has not burdened Alabama alone. However, in most states, the evolution of the answer to this question has produced a broader definition of "property" than it has in Alabama--a definition that, in most instances, explicitly and specifically includes real property. To better understand the clutter from which such an all-encompassing definition has arisen and the power of its simplicity, we track this evolution through two reference materials.

The first is the commentary to § 223.2 of the Model Penal Code (1980). ⁴ It expounds on the Model Code's definition of "property" as it relates to the provisions concerning theft and related offenses. This definition is found in § 223.0, which reads in pertinent part:

" § 223.0. Definitions.

"In this Article, unless a different meaning plainly is required:

"....

"(6) 'property' means anything of value, including real estate, tangible and intangible personal property, contract rights, choses-in-action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power."

Regarding the breadth of this definition, the commentary states:

"The comprehensive definition of 'property' is intended to abrogate whatever still survives of the artificial common-law restrictions on the scope of larceny and the other theft offenses. These restrictions on the kinds of property that might be the subject of theft were developed at a time when larceny was a capital offense and when there was understandable pressure not to expand its coverage. The limitations clustered around two principal notions: (i) that some things had no value, e. g., domestic animals; and (ii) that real estate was immovable and fairly indestructible and could therefore safely be excluded from theft penalties. The real estate exception was extended, moreover, to exclude fixtures, growing crops, and deeds from punishment for theft. The resulting deficiencies in the law of theft have been the subject of a great deal of piecemeal remedial legislation that has vastly increased the bulk of theft law and unduly complicated its administration. The definition of 'property' in Section 223.0(6) includes anything that is part of one person's wealth and that another person can appropriate. The enumeration serves both to illustrate the general principle and specifically to negate the traditional restrictions that have been noted.

"At the time the Model Code was drafted, the confusion of contemporary law indicated the need for explicit inclusion of real estate within the definition of theft. While some jurisdictions made realty the subject of theft either by false pretenses or by embezzlement, others appeared to permit only a prosecution for false pretenses in cases involving the appropriation of interests in land. In Ohio, the phrase 'anything of value' appeared in both the false-pretense and embezzlement statutes but was construed to include real estate only in the former. It seems clear that a theft prosecution should be possible where the actor, having power as trustee, attorney, or otherwise to dispose of another's real estate, does so to his own benefit in violation of his trust. Section 223.2(2)...