T.P.I. -- CRIM. 11.02

THEFT OF SERVICES

            Any person who commits the offense of theft of services 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 essential elements:1

[Part A:

            (1)  that the defendant obtained services;

and

            (2)  that these services were obtained either by deception, fraud, coercion,

                   false pretense or by any other means to avoid payment for these

                   services;

and

            (3)  that the defendant acted intentionally.]

or

[Part B:

            (1)  that the defendant had control over the disposition of services to

                   others;

and

            (2)  that the defendant diverted those services to [his] [her] own benefit or

                   to the benefit of another not entitled thereto;

and


            (3)  that the defendant acted knowingly.]

or

[Part C:

            (1)  that the defendant absconded from an establishment where

                   compensation for services is ordinarily paid immediately upon

                   the rendering of these services;

and

            (2)  that the defendant absconded without payment or a bona fide offer to

                   pay;

and

            (3)  that the defendant acted knowingly.]

            "Obtain" means to secure the performance of service.2

            "Services" includes [labor] [skill] [professional service] [transportation] [telephone] [mail] [gas] [electricity] [steam] [water] [cable TV] [other public services] [accommodations in hotels, restaurants or elsewhere] [admissions to exhibitions] [use of vehicles or other movable property].3

            "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 did not

                   intend to perform or knew would 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].4

            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.5

            "Fraud" is defined as the term is used in normal conversation and includes, but is not limited to, deceit, trickery, misrepresentation and subterfuge.6

            "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].7

            "False pretense" means a false representation of an existing fact whether by oral or written words or conduct, calculated to deceive, intended to deceive, and does in fact deceive, whereby one person obtains services from another without compensation.8

            "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.9

            ["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.]10 

            [The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally].11

            "Bona fide" means in or with good faith; honestly, openly, and sincerely; without deceit or fraud.12

            [Under Part C, establishments shall include, but not be limited to, hotels, motels, and restaurants].13


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

FOOTNOTES

  1.  Tenn. Code Ann. § 39-14-104.

  2.  Tenn. Code Ann. § 39-11-106(a)(24)(A)(ii).

  3.  Tenn. Code Ann. § 39-11-106(a)(34).

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

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

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

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

  8.  Black's Law Dictionary (5th Ed. 1979).

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

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

11.  Tenn. Code Ann. § 39-11-301(a)(2).

12.  Black's Law Dictionary (5th Ed. 1979).

13.  Tenn. Code Ann. § 39-14-104(3).

COMMENTS

            1.  Theft of services is graded identically to theft of property.  See the comment to T.P.I. -- CRIM. 11.01 (Theft of Property).

            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 a defense, the trial judge should utilize T.P.I. -- CRIM. 40.13 (Claim of right), which appears in the "Defenses" chapter.