1 The ind ictmen t in relevant pa rt charge s that Do rothy She ldon "did for ge and mak e . . . a certain pa per writing, to -wit: a Reta il Installmen t Contrac t and Se curity Agree men t . . ."



# 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 SESSION,

1997

STATE OF TENN ESSEE, ) ) No. 01C01-9604-CC-00151 Appellee ) ) DICKSON COUNTY vs. ) ) Hon. LEONARD W. MARTIN, Judge DOROTHY SHELDON, ) ) (For gery) Appellant )

DISSENTING OPINION

The majority concludes that venue was proper in D ickson County. I respectfully disagree. In finding venue in Di ckson County, the majority, relying upon Girdley v. State , 29 S.W.2d 255 (Tenn. 1930), employs an agency theory to establish the appellant's c onstructive presence i n Dickson County. I am u nable to agree with the majority's rational for tw o reasons. First, in Girdley , the defendant was charged with the offense of uttering or attempting to pass a forged check. Had the appellant in this case been charged with utteri ng or passing a forged w riting, I would agree that venu e would have been proper in Dickson County. See Tenn. Code Ann. § 39-14-114(b)(1) (D). However, as reflected by the indictment, the State chose to indict the appellant in Dickson County for forg ery. Tenn. Code Ann. § 39- 14-114(b)(1)(A). 1 Second, it is undisputed that t he appellant's act of forging the signature of another occurred in Humphreys County. Thus, in order to establish venue in Dickson County, it w

as incumbent upon the State to encompass the conduct of the innocent agent. Criminal responsibility for th e conduct of another is gover ned by the provisions of the 1989 Cri minal Code. Girdley was decided in 1930. Under our current code, a person is criminally liable for his own unlawful conduct, the conduct2 If one or more elem ents of an offense are com mitted in one county and one or m ore elements in anot her, the of fense may be prosecuted i n either county. Tenn. Code Ann. § 39-11- 103(d). 2 of another for which he is re sponsible, or both. Tenn. Code Ann . § 39-11-401. Tenn. Code Ann. § 39-11-402(1) pr ovides that a person is criminally responsib le for an offense committed by the conduct of another, if the person "causes or aids an innocent or irresponsibl e person to engage in unlaw ful conduct." In other word s, a person is "accountable for the behav ior of an innocent or irres ponsible person when he has caused such behavior to occur, provided he has caused it with the purpos e, knowledge, reckless ness, or negligence tha t the law requires

for commission of the crime with which

he has been charged," regar dless of whether or not suc h other person is capable of forming the c ulpable mental state. MODEL PENAL C ODE , § 2.06. Thus, under this theory of cr iminal responsibility , venue could have been established in Dickson County as the appellant knowingly caused the innocent clerk to prepare the credit application w ith the intent to defraud. 2 This theory, howev er, was neither relied upon by the State nor charged to the jury b

y the trial court. Although an indictment need not allege "the theory by which the state seeks to hold the defendant responsible for the crimi nal act," the trial court has a duty, even without a request, to give a complete charge of the applicable law to the facts of the case including instructi ng the jury as to the theories of both the prosecution and defense. State v. Stoddard , 909 S.W.2d 454, 46 0 (Tenn. Crim. App. 1994) (citations omitted); State v. Locke , 771 S.W.2d 132, 138 (Tenn. Crim. App. 1988) (cit ation omitted). In sum, because no theory of criminal liability connects the appellant's cond uct in Humphreys County to co nduct in Dickson County , I find no element of the charged offense occurring in the latter venue. For the foregoing reasons , I would dismiss, findi ng the evidence insufficient to establis h venue in Dickson Co unty.

____________________________________ DAVID G. HAYES, Jud ge