               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                AT NASHVILLE
                              MAY SESSION, 1997                             FILED
                                                                            November 6, 1997

                                                                    Cecil W. Crowson
STATE OF TENNESSEE,                         )
                                                                  Appellate Court Clerk
                                            )        No. 01C01-9604-CC-00151
        Appellee                            )
                                            )        DICKSON COUNTY
vs.                                         )
                                            )        Hon. LEONARD W. MARTIN, Judge
DOROTHY SHELDON,                            )
                                            )        (Forgery)
        Appellant                           )



                                        DISSENTING OPINION



        The majority concludes that venue was proper in Dickson County. I

respectfully disagree. In finding venue in Dickson County, the majority, relying upon

Girdley v. State, 29 S.W.2d 255 (Tenn. 1930), employs an agency theory to

establish the appellant's constructive presence in Dickson County. I am unable to

agree with the majority's rational for two 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 uttering or passing a forged writing, I

would agree that venue 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 forgery. Tenn. Code Ann. § 39-

14-114(b)(1)(A).1

        Second, it is undisputed that the appellant's act of forging the signature of

another occurred in Humphreys County. Thus, in order to establish venue in

Dickson County, it was incumbent upon the State to encompass the conduct of the

innocent agent. Criminal responsibility for the conduct of another is governed by the

provisions of the 1989 Criminal Code. Girdley was decided in 1930. Under our

current code, a person is criminally liable for his own unlawful conduct, the conduct

        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 . . ."
of another for which he is responsible, or both. Tenn. Code Ann. § 39-11-401.

Tenn. Code Ann. § 39-11-402(1) provides that a person is criminally responsible for

an offense committed by the conduct of another, if the person "causes or aids an

innocent or irresponsible person to engage in unlawful conduct." In other words, a

person is "accountable for the behavior of an innocent or irresponsible person when

he has caused such behavior to occur, provided he has caused it with the purpose,

knowledge, recklessness, or negligence that the law requires for commission of the

crime with which he has been charged," regardless of whether or not such other

person is capable of forming the culpable mental state.          MODEL PENAL CODE ,     § 2.06.

Thus, under this theory of criminal responsibility, venue could have been established

in Dickson County as the appellant knowingly caused the innocent clerk to prepare

the credit application with the intent to defraud.2 This theory, however, was neither

relied upon by the State nor charged to the jury by the trial court. Although an

indictment need not allege "the theory by which the state seeks to hold the

defendant responsible for the criminal 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 instructing the jury as to the theories of both the prosecution and defense.

State v. Stoddard, 909 S.W.2d 454, 460 (Tenn. Crim. App. 1994) (citations omitted);

State v. Locke, 771 S.W.2d 132, 138 (Tenn. Crim. App. 1988) (citation omitted). In

sum, because no theory of criminal liability connects the appellant's conduct in

Humphreys County to conduct in Dickson County, I find no element of the charged

offense occurring in the latter venue.

       For the foregoing reasons, I would dismiss, finding the evidence insufficient to

establish venue in Dickson County.



                                       ____________________________________
                                       DAVID G. HAYES, Judge



       2
        If one or more elem ents of an offense are com mitted in one county and one or m ore
elements in another, the offense may be prosecuted in either county. Tenn. Code Ann. § 39-11-
103(d).

                                              2
