# FILED
November 6, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MAY 1997 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9604-CC-00151 Appellee, ) ) Dickson County V. ) ) Honorable Leo nard W. Martin, Judge ) DOROTHY SHELDON, ) (Forgery) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Michael J. Flanagan Charles W. Burson Dale M. Quillen Attorney General & Reporter Attorneys at Law 95 White Bridge Road Eugene J. Honea Suite 208, Cavalier Bui lding Assistant Attorney Gener al Nashville, TN 37205 Criminal Justice Div ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 Dan M. Alsobrooks District Attorney General Robert S. Wilson Assistant District A

ttorney General P.O. Box 580 Charlotte, TN 37036

OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMM ERS, Judge-2- O P I N I O N The appellant, Dorothy Sheldon, was convicted by a jury of forgery. She was sentenced as a Range III, persistent offender to four ye ars incarceration. She appe als raisin g the foll owing issue s for our r eview: 1. Whether the evidence is sufficient to suppor t her conviction; 2. Whether the evidence is sufficient to establ ish venue in Dickson County; and 3. Whether the manner of service of her sentence i s proper. Upon review, w

e affirm the trial court’s j udgment of conviction and sentenc e.

FACTS
The appellant called Leader Furn iture in Dickson County and represented herself to be Victoria S pann. She req uested financi ng and order ed several

items of furniture to be delivered to her home in Humphreys Count y. She gave the store clerk her corr

ect address and phone number but used a bogus name and social security number. This information was used to complete a credit application which w

as forwarded to Tennessee Credi t Corporation (Tennessee Credit) for approval. Tennessee Credit noticed the addr ess discrepancy but nevertheless approved the application. The furniture w as delivered to the appellant's

residence i n Humphreys County. U pon arriv

al, she forg ed the name Victoria Spann to the store' s sale invoice and to a s ecurity agreement.
A diligent UPS employee noticed the scheduled delivery to Victoria Spann. He called the real Vi ctoria Spann and told her that fur niture had been delivered under her name to a strange address. Ms. Spann was puzzled an d began to investigate the situation. She informed Tennessee C redit that something was afoot. Tennessee C redit and Leader Furniture began to invest igate. Apparently, at this po int the appellant thought it pru dent to r ectify her fraud. She called Leader Fur niture and stated that she had mis takenly given-3- an incorrect social sec

urity number on her credi t application. She insist ed that her correct number be inser ted on the credit application . Thereafter, the appellant sent a cashier's check to Tennessee Credit to pay off the debt in full. However, she overpaid. Tennessee Credit requested that she come to its off ice in Dickson County and pi ck up the $4.23 overpayment. The appellant complied and accepted the refund check endorsi ng it in the name of Victoria Spann. Subsequently, she was arrested and indicted for forg ery.

I
In her first issue the appell ant contends that the evidence p resented at trial is insufficient to su pport her conviction. Specifically, she arg ues that the state failed to prove that she forged a writing and failed to prove that she intended to defraud anyone because the debt was paid in full. We disagree.
Great weight is afforded a v erdict reached by a jur

y in a criminal tri al. A jury verdict appr

oved by the trial j udge accredits the state’ s witnesses and resolves all conflict

s in favor of the state. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983). On appeal, the stat e is entitled to the strong est legitimate view of the evidence and all re asonabl e infere nces which may be dra wn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdic

t removes the presumption of innoc ence which the appellant enj oyed at trial and raises a pr

esumption of guilt on appeal. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). The appellant ha s the burden of overcoming this presumption of guilt. Id.
Where sufficiency of the evidence is chall enged, the relevant ques tion for this Court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the es sential elements of the crime or crimes bey ond a reasonable doubt. Jackson v. Virginia , 443 U.S.-4- 307, 319 (1979); State v. Duncan , 698 S.W.2d 63, 67 (T enn. 1985); Tenn. R. App. P. 13(e). The weight and credibility of the witnesses’ testimony are matters entrusted exclusive ly to the jury as the triers of fact. State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978).

The evidence was sufficient t o sustain the appellant’s conv iction. The state presented strong ci rcumstantial evidence that the appellant called Leader Furniture with the i ntent to defraud it out of furniture. Ev idence was presented that someone at the appellant's res idence forged the name Victoria Spann to a sales invoice and a secu rity agreement. Testimony was elicited that it

was the appellant who paid off the furniture "purchase" when an invest igation began. Furthermore, the appellant appear ed in person at Tennessee Credit to claim her refund check. The testimony presented at trial, albeit circumst antial, overwhelmingly

points to the appellant as the pe rson who committed the forger y. A reasonable jury could have concluded the appellant committed every element of the offense beyond a reasonable doubt. This issue is without meri

t.

II
The appellant

next conten ds that the st ate failed to p rove that t he crime occurred in Dickson C

ounty. Therefore, she claims t hat there is insufficient evidence to establish v enue. We disagree.
Article I, § 9 of the Tennessee Co nstitution provides that in all criminal prosecutions by indictment or presentment, the accused ha s the right to a public trial in the county i n which the alleged cr ime was committed. See also Tenn. R. Crim. P. 18. The state has the bur den of proving that the offense w as committed in the county of the indictment. Harvey v. State , 376 S.W.2d 497 (Tenn. 1964). Venue may be shown by a pr eponderance of the evidence, w hich may be either-5- direct, circumstantial, or a combination of both. Hopper v. State , 326 S.W.2d 448 (Tenn. 1959). Slight ev idence with respect to venue will be sufficient to carry the state's bur

den of proof. State v. Bennett , 549 S.W.2d 949 (Tenn. 1977). Furthermore, the Rul es of Criminal Procedure pr ovide that "if one or more elements of an offense are committed in one county and one or more elements in another, the offense may be prosecuted in either county." Tenn. R. Crim. P. 18(b).
A person commits an offense of forgery when he or she forges a writing with the intent to defraud or harm another. Tenn. Code Ann. § 39-14- 114(a) (1991). The statutory definit ion of "forge" is to "[a]lter, mak e, complete, execute or authenticate any writing so that it purports to ...[b]e the act of another who did not authorize the act[.]" Tenn. Code Ann. § 39-14-114(b)(1) (A)(I) (1991). Therefore, the state was required to prove by a preponderance of the e vidence that the appellant committed one element of the offense in Dickson County.

The record reveals that th e appellant signed the name of Vict oria Spann to a sales invoice and s ecurity agreement in H umphreys County. The state contends that the appellant became ner vous when Tennessee Credi t began to investigate the circumstances surrounding the transaction. In order to avoid detection, she paid off the outstanding debt. But, she overpaid. As a result of her overpayment, she enter ed Dickson County and forg ed a bogus name on the refund check. This, the state arg ues, establishes venue in Dickson County. The appellant argues that the ti me of the signing of the refund check she had no intent to defraud. It is her pos ition that this cannot be used a s evidence of forgery concerning other documents executed on a pr ior date in a different county.1 This, although antiquated but viable legal doctrine, is known as crimen tr ahit per sonam . Transl ated it means t he crime carr

ies the per

son. In pr

actice, it means that

the commission of

the cri me through an agent gi ves the court

s of the place w here the c rime is com mitted ju risdiction ove r the principa l offender. -6- This issue presents an inter esting question. The rec ord establishes that the appellant placed a phone call to Leader Furniture in Di ckson County with the intent to defraud. The actus rea , i.e., the forging of a writing, took place in Humphreys County. We find that the appellant was constructiv ely present in the indictment county with the mental intent to defraud. The rati onale for such a holding is articulate

d below.
First, it is a settled principal of law that, when one puts in force an agency for the commission of a crime, that per son, in legal contemplation , accompanies the agent to the point where the crime becomes effe ctual. 1 An analogous case to the present situation which illustrates this point is Girdley v. State , 29 S.W.2d 255 (Tenn. 1930). In Girdley , the defendant gave a bus driv er a forged check. He requested that the bus dr iver take the check to a bank in the next county an d cash it. The bus driver , unaware of the forgery, attempted to comply and was apprehended. He led the authoriti es to the true offender. The offender was tr ied and convicted in the county in which the bank was located. On appeal from his conviction, the Supreme Court held that when the offe nse of forgery is committed through an agent, v enue is proper where the acts were done by the agent. Id. The actual physical loc ation of the true offender is inconseq uential. Id.
In the present case, the appellant, possessing the requi site mens rea for forgery, placed a phone call into Dickson County. The clerk at Leader Furniture filled out a credit applicat ion for the appellant. In doing so, she became the appellant's agent. Because t he agent was furthering the appellant's fraud, the appellant "committed” the mental el ement of forgery in Dicks on County and became subject to its juri sdiction and venue.2 The presentence report r eveals that

the appell ant had previ ously been ar rested and/

or convict

ed of fraud involvi ng credit cards, b ad chec ks, larcenie s, and the ft of property crim es.

3 The rec ord also rev eals that the appellan t was ou t on bail wh en the p resent crim e was c omm itted. -7- A second, equally tenable theory in support of a finding of venue in Dickson County is the fact that the appellant set into motion a series of acts in Dickson County wi

th the intent to defraud a retailer. This crime was ongoi ng and continuous until its consummation, i.e., the signing of the ref und check in Dickson County. Regardless of the rationale used to reach this result, we hold that venue was proper i n Dickson County. This issue is overruled.

III
In her last issue the appellant contends that the trial court improp erly sentenced her to four years incarceration. She argues that she is a viable candidate for community corrections or split confinement. We disagree.
When a sentencing issue is appealed, this Court shall conduct a de novo review with the presumption that the trial c ourt’s findings are cor

rect. State v. Byrd , 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993). The pres umption of correctness is conditioned upon an affirmative showing that the trial court considered the sentencing pr inciples and all relev

ant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

The record reveals that th e state introduced several potential enhancement factors at the sentencing hearing. The appellant also introduced several mitigating factors on her own behalf. The trial judge found none of these factors applicable. He based his decision to incarcerate the appe llant on the fact that she has a long history of committing similar ty pe crimes 2 and the fact that she has shown an "unwil lingness on previous occasions to abide by measur es less restrictive

than confinement." 3-8- The record reveals that th e trial court properly considered the principles of sentencing. Nothing i n the record suggests the trial judge improper ly sentenced the appellant. She has not overcome the presumption of correctness. This issue is overruled.
Finding no error of law

mandating reversal, w e affirm the judgment of the trial court.

________________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

____________________________ DAVID G. HAYES, Jud ge

____________________________ JERRY L. SMITH, Jud ge