FILED

June 15, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE ) FOR PUBLICATION

 )

Appellee ) FILED: JUNE 15, 1998

 )

V. ) HENDERSON COUNTY 

 )

 ) HON. FRANKLIN MURCHISON,

JACQUELINE DEANNA ALEXANDER VICKERS ) JUDGE

and WILLIAM J. BOONE )

 ) NO. 02-S-01-9610-CC-00092

Appellants )

For Appellants: For Appellee:

PATRICK MARTIN JOHN KNOX WALKUP 

Jackson, Tennessee Attorney General and Reporter

(For Appellant Vickers)

 MICHAEL E. MOORE

HENRY HAILE Solicitor General

Nashville, Tennessee 

 and DAVID M. HIMMELREICH

CARTHEL L. SMITH, JR. LAURA DYKES

Lexington, TN Deputy Attorney General

(For Appellant Boone)

ALBERT L. PARTEE, III

Senior Counsel

Nashville, Tennessee

JAMES G. WOODALL

District Attorney General

Jackson, Tennessee

OPINION

COURT OF CRIMINAL APPEALS JUDGMENT AFFIRMED BIRCH, J.
1A prior indictment returned on October 5, 1992, was

superseded by this later indictment.

2Ernest Vickers, III, is not a party to this appeal.

2

We granted permission to appeal under Tenn. R. App. P. 11

to the appellants, Jacqueline Deanna Alexander Vickers and William

J. Boone. The issue is whether a trial court may conduct a

pretrial evidentiary hearing, pursuant to Tenn. R. Crim. P. 12, to

determine the evidentiary sufficiency relevant to the tolling of

the statute of limitations. Because the statute of limitations

issue presented herein is not one “which is capable of

determination without the trial of the general issue,” we conclude

that it should have been submitted to the jury. Accordingly, the

judgment of the Court of Criminal Appeals is affirmed. 

 

I

In an eighteen-count indictment returned on February 1,

1993,1 Vickers, her husband, Ernest Vickers, III,2 and accountant

William J. Boone were charged with various counts of securities

fraud, conspiracy to commit securities fraud, grand larceny,

fraudulent appropriation, and obtaining money by false pretenses.

The charges arose out of the operation of First National Bancshares

Financial Services, Inc. (Financial Services), a company owned by

Vickers’ husband. 

Boone was charged with securities fraud in count one and

conspiracy to commit securities fraud in count two. The facts

supporting these charges involved the filing of a false prospectus

of Financial Services with the Commissioner of the Tennessee
3(b) Prosecutions for any offense punishable by imprisonment

in the penitentiary when the punishment is expressly limited to

five (5) years of less, shall be commenced within two (2) years

next after the commission of the offense, . . . . 

(d) Prosecution for any offense punishable by imprisonment in

the penitentiary, other than as specified in subsections (a), (b)

or (c), shall be commenced within four (4) years next after the

commission of the offense. 

Tenn. Code Ann. § 40-2-101 (Supp. 1987).

3

Department of Commerce and Insurance on or about January 11, 1988.

Vickers was charged in counts six, seven, and eight with securities

fraud, fraudulent appropriation, and grand larceny. The facts

supporting these charges related to undisclosed self-dealing in the

sale to Financial Services of certain property. The fraudulent

conduct surrounding this sale was alleged to have occurred on

diverse days between April 14, 1987, and May 14, 1987. 

The State alleged that the various offenses occurred

between April 14, 1987, and January 11, 1988, and an indictment was

returned October 5, 1992. Because a four-year limitations period

applies to the offenses charged in counts one, six, seven, and

eight, and a two-year limitations period applies to the offense

charged in count two, the State is consequently barred from

prosecuting the appellants unless it can show that the limitations

statute, Tenn. Code Ann. § 40-2-101 (1982),3 has been tolled. The

State alleged in the indictment that the statute was tolled by the

appellants’ concealment of the offenses. Count one provided:

The statute of limitations for this

offense was tolled until September

28, 1990, during which time

defendants and their agents and

employees concealed the facts of

this crime by continuing to make

material omissions and untrue
4

statements in written and oral

communications to the commissioner

and the commissioner' s

representatives, by delivering or

causing misleading prospectuses to

be delivered to investors without

informing them of their true

intentions and past acts, and by

causing their agents to obtain

waivers from investors of receipt of

prospectuses.

Counts two, six, seven, and eight contained similar tolling

language.

The appellants moved to dismiss the indictment as

untimely. The trial court initially held that the State’s

allegations of concealment were legally sufficient to toll the

statute of limitations. Subsequently, over the State’s objection,

the trial court held a pretrial hearing in order to make findings

of fact on the issue of concealment. As stated by the court, the

sole question was “whether there is any evidence upon which a

rational trier of fact could base a finding that the defendants, or

any of them, concealed the crimes alleged in the indictment in a

manner which would toll the running of the statute of limitations.”

At the conclusion of a lengthy pretrial hearing, the

trial court found that the State became aware of the appellants’

conduct no later than September 28, 1990, the date Financial

Services was placed into receivership on the motion of State

agents. The trial court noted that there could have been no active

concealment after that date. Because the limitations period for

the conspiracy charge is two years, the court held that count two

was time-barred. Further, the court found no evidence of any
5

concealment on the part of Vickers; therefore, all charges against

her were dismissed. As to count one, the remaining count against

Boone, the court found some proof that Boone concealed the true

financial status of Financial Services; consequently, the court

held that the jury must decide the statute of limitations issue in

count one. 

Boone went to trial on count one, and Vickers’ husband

went to trial on the remaining counts. At the conclusion of the

State’s proof, the court granted Boone’s motion for a judgment of

acquittal on count one on grounds of insufficient evidence and lack

of proof of concealment. The jury acquitted Vickers’ husband on

counts three through eighteen, but was unable to reach a verdict as

to count one. The State then appealed the pretrial dismissal of

count two against Boone and counts six, seven, and eight against

Vickers. The State did not appeal as to any charges against

Vicker’s husband. The Court of Criminal Appeals reversed and

remanded, finding that the question whether the statute of

limitations was tolled by concealment is a question of fact that

should have been submitted to the jury.

II

As the Court of Criminal Appeals recognized in its

decision, the Tennessee Rules of Criminal Procedure establish the

State’s right to a jury trial. Tenn. R. Crim. P. 5, Advisory

Commission Comments; State v. Brackett, 869 S.W.2d 936, 939 (Tenn.

Crim. App. 1993). Specifically, under Tenn. R. Crim. P. 5(c)(1) a
6

defendant may submit to the jurisdiction of the general sessions

court in misdemeanor cases, but only if the district attorney

general does not object. Further, under Tenn. R. Crim. P. 23 a

defendant cannot waive the right to a trial by jury unless the

district attorney general and the court consent to the waiver.

Having recognized the State’s right to a jury trial, we must

determine whether the trial court had authority to deny that right

in the context of a statute of limitations issue. 

Whether the trial court had authority under Tenn. R.

Crim. P. 12 to resolve the statute of limitations issue is a

question of law, which we review de novo. See State v. Davis, 940

S.W.2d 558, 561 (Tenn. 1997). Prior to the adoption of the

Tennessee Rules of Criminal Procedure in 1978, a statute of

limitations defense was one to be established only by proof at

trial. In State v. Landis, 177 Tenn. 304, 145 S.W.2d 1032 (1941),

this Court overturned the pretrial dismissal of an indictment for

untimeliness, because that was a factual issue for the jury to

decide. However, Tenn. R. Crim. P. 12 has modified the common law

rule. The relevant portions of Rule 12 provide:

 (b) Pretrial Motions. Any defense,

objection, or request which is

capable of determination without the

trial of the general issue may be

raised before trial by motion.

Motions may be written or oral at

the discretion of the judge. The

following must be raised prior to

trial:

 (1) Defenses and objections based

on defects in the institution of the

prosecution; or
7

 (2) Defenses and objections based

on defects in the indictment,

presentment or information (other

than that it fails to show

jurisdiction in the court or to

charge an offense which objections

shall be noticed by the court at any

time during the pendency of the

proceedings); or

 (3) Motions to suppress evidence;

or

 (4) Requests for discovery under

Rule 16; or

 (5) Requests for a severance or

consolidation of charges or

defendants under Rule 14.

 . . . 

 (e) Ruling on Motion. A motion

made before trial shall be

determined before trial unless the

court, for good cause, orders that

it be deferred for determination at

the trial of the general issue or

until after verdict, but no such

determination shall be deferred if a

party's right to appeal is adversely

affected. Where factual issues are

involved in determining a motion,

the court shall state its essential

findings on the record.

Thus, under Rule 12 there are five issues which must be

raised before trial. All other issues, including statute of

limitations issues, may be raised before trial, but only if they

are “capable of determination without the trial of the general

issue.” Once an issue is properly raised, the trial court must

make a determination before trial, unless there is good cause to

defer the issue to the jury. The dispositive question in this

case, then, is whether a determination of the limitations issue

will involve a determination of “the general issue.” 
8

Because there is no Tennessee law directly on point, we

turn to federal law for guidance in answering this question.

Tennessee’s Rule 12 is identical to its federal counterpart, Fed.

R. Crim. P. 12. The Advisory Committee Notes to the federal rule

explain that the objections and defenses which may be raised at the

defendant’s option include: “such matters as former jeopardy,

former conviction, former acquittal, statute of limitations,

immunity, lack of jurisdiction, failure of indictment or

information to state an offense, etc.” (emphasis added). Thus,

when a statute of limitations question is raised in federal court

prior to trial, the trial court has the authority to decide it.

United States v. Wilson, 26 F.3d 142, 159 (D.C. Cir. 1994)(quoting

1 Charles Alan Wright, Federal Practice and Procedure, § 193, p.

708 (2d ed. 1982)), cert. denied, 5114 U.S. 1051, 115 S. Ct. 1430,

131 L. Ed.2d. 311 (1995). 

The federal courts’ authority to decide a limitations

issue before trial is not absolute, however. If the defense is

substantially founded upon and intertwined with factual evidence of

the alleged offense that will necessarily be introduced at trial,

it falls within the province of the ultimate finder of fact, and

ruling should be deferred until trial. E.g., Wilson, 26 F.3d at

159; United States v. Blackwell, 954 F. Supp. 944, 954 (D.N.J.

1997). “‘[G]ood cause’ exists, and indeed a decision on a motion

should be deferred, if disposing of the motion involves deciding

issues of fact that are inevitably bound up with evidence about the

alleged offense itself.” Wilson, 26 F.3d at 159. On the other

hand, a pretrial determination of the limitations defense is
9

appropriate when a trial of the facts surrounding the alleged

offense would be of no assistance in determining the validity of

the defense. United States v. Conley, 859 F. Supp. 909, 927-28

(W.D. Pa. 1994) (quoting United States v. Covington, 395 U.S. 57,

60, 89 S. Ct. 1559, 1561, 23 L. Ed.2d 94, 99 (1969)). For example,

if the issue revolves solely around the date a particular offense

occurred, then the matter can certainly be resolved on the motion

before trial. See United States v. Dolan, 189 B.R. 484, 487 (D.

Neb. 1995), aff'd 120 F.3d 856 (8th Cir 1997).

We find the above-described federal rule to be a suitable

standard for ascertaining whether the limitations issue is “capable

of determination without the trial of the general issue,” under

Tenn. R. App. P. 12. Turning now to its application in this case,

the facts supporting the charge against Boone of conspiracy to

commit securities fraud involve the filing of a false prospectus

with the Commissioner of Commerce. Similarly, the facts alleged to

toll the limitations statute involve concealment of the fraud

through “material omissions and untrue statements in written and

oral communications to the commissioner.” The State further

alleged that Boone concealed the fraud by delivering false

prospectuses to investors. Under these facts, we find that the

alleged concealment as a practical matter is nothing more than a

continuation of the fraud for which he is charged. 

Next, the facts supporting the charges against Vickers--

securities fraud, fraudulent appropriation, and grand larceny--

involve “undisclosed self-dealing” in the sale of real estate to
4Boone has raised three other issues. First, he asserts that

the State is barred under Tenn. R. App. P. 3 from appealing the

10

Financial Services. The facts alleged to toll the limitations

statute again involve concealment of the offenses through omissions

and untrue statements made to the commissioner and through the

delivering of false prospectuses to investors. As we understand

the allegations against Vickers, the statute of limitations was

allegedly tolled by the continuing nondisclosure of the

“undisclosed self-dealing.”

Clearly, this is not a case where the question of

timeliness concerns only the date of the offense or some other fact

unrelated to the appellants’ guilt or innocence. Rather, the same

evidence which would prove concealment and toll the limitations

statute would also tend to prove guilt of the offenses charged. We

therefore conclude that the statute of limitations issue should

have been presented to the jury, because the factual evidence of

the alleged offenses is too closely intertwined with the evidence

of the appellants’ alleged concealment of those offenses. 

In sum, trial courts generally may conduct pretrial

evidentiary hearings on statute of limitations issues, pursuant to

Tenn. R. Crim. P. 12(b) and (e), but only when a determination can

be made without involving the general issue of guilt or innocence.

Here, this standard was not satisfied. Consequently, the trial

court’s pretrial determination of the limitations issue violated

Rule 12. The decision of the Court of Criminal Appeals is

accordingly affirmed, and the cause is remanded to the trial court

so that the issues may be resolved by the jury.4
dismissal of count two because it waited until he was acquitted at

trial of count one. This issue is meritless. Although the State

could have brought an interlocutory appeal of the trial court's

decision dismissing count two under either Tenn. R. App. P. 9 or

10, it was not required to do so. Rule 3(c)(1) provides that the

State has an appeal of right from an order of the trial court “the

substantive effect of which results in dismissing an indictment,

information, or complaint.” Until the trial court acquitted Boone

on count one, the pretrial dismissal of count two did not have the

substantive effect of dismissing the indictment against him.

Second, Boone contends that the judgment of acquittal on count

one bars the State from retrying him under collateral estoppel or

double jeopardy principles. Third, he contends that the language

of count two is insufficient to charge conspiracy to commit an

offense against the State of Tennessee. Because the trial court

has not had the opportunity to rule on these issues, we will follow

the lead of the Court of Criminal Appeals and decline to address

them. 

11

______________________________

ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.

Drowota, Holder, JJ.

Reid, S.J.