                  IN THE SUPREME COURT OF TENNESSEE

                             AT JACKSON
                                                   FILED
                                                      June 15, 1998

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
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.
             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

     1
      A prior indictment returned            on    October    5,    1992,    was
superseded by this later indictment.
     2
         Ernest Vickers, III, is not a party to this appeal.

                                       2
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

     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
                   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


                                          4
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



                                      5
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




                                     6
                (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.”



                                7
            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



                                       8
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



                                     9
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

     4
     Boone has raised three other issues. First, he asserts that
the State is barred under Tenn. R. App. P. 3 from appealing the

                                      10
                              ______________________________
                              ADOLPHO A. BIRCH, JR., Justice


CONCUR:

Anderson, C.J.
Drowota, Holder, JJ.
Reid, S.J.




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
