      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE                FILED
                          MAY 1997 SESSION
                                                           November 6, 1997

                                                          Cecil W. Crowson
                                                         Appellate Court Clerk

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




FOR THE APPELLANT:                     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 Building           Assistant Attorney General
Nashville, TN 37205                    Criminal Justice Division
                                       450 James Robertson Parkway
                                       Nashville, TN 37243-0493

                                       Dan M. Alsobrooks
                                       District Attorney General

                                       Robert S. Wilson
                                       Assistant District Attorney General
                                       P.O. Box 580
                                       Charlotte, TN 37036



OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge
                                   OPINION


       The appellant, Dorothy Sheldon, was convicted by a jury of forgery. She

was sentenced as a Range III, persistent offender to four years incarceration.

She appeals raising the following issues for our review:

       1. Whether the evidence is sufficient to support her conviction;

       2. Whether the evidence is sufficient to establish venue in
       Dickson County; and

       3. Whether the manner of service of her sentence is proper.


Upon review, we affirm the trial court’s judgment of conviction and sentence.



                                      FACTS



       The appellant called Leader Furniture in Dickson County and represented

herself to be Victoria Spann. She requested financing and ordered several items

of furniture to be delivered to her home in Humphreys County. She gave the

store clerk her correct address and phone number but used a bogus name and

social security number. This information was used to complete a credit

application which was forwarded to Tennessee Credit Corporation (Tennessee

Credit) for approval. Tennessee Credit noticed the address discrepancy but

nevertheless approved the application. The furniture was delivered to the

appellant's residence in Humphreys County. Upon arrival, she forged the name

Victoria Spann to the store's sale invoice and to a security agreement.



       A diligent UPS employee noticed the scheduled delivery to Victoria

Spann. He called the real Victoria Spann and told her that furniture had been

delivered under her name to a strange address. Ms. Spann was puzzled and

began to investigate the situation. She informed Tennessee Credit that

something was afoot. Tennessee Credit and Leader Furniture began to

investigate. Apparently, at this point the appellant thought it prudent to rectify

her fraud. She called Leader Furniture and stated that she had mistakenly given

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an incorrect social security number on her credit application. She insisted that

her correct number be inserted 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 office

in Dickson County and pick up the $4.23 overpayment. The appellant complied

and accepted the refund check endorsing it in the name of Victoria Spann.

Subsequently, she was arrested and indicted for forgery.



                                           I



       In her first issue the appellant contends that the evidence presented at

trial is insufficient to support her conviction. Specifically, she argues 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 verdict reached by a jury in a criminal trial. A

jury verdict approved by the trial judge accredits the state’s witnesses and

resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405,

410 (Tenn. 1983). On appeal, the state is entitled to the strongest legitimate

view of the evidence and all reasonable inferences which may be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a

guilty verdict removes the presumption of innocence which the appellant enjoyed

at trial and raises a presumption of guilt on appeal. State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973). The appellant has the burden of overcoming this

presumption of guilt. Id.



       Where sufficiency of the evidence is challenged, the relevant question 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 essential elements of

the crime or crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.



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307, 319 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R.

App. P. 13(e). The weight and credibility of the witnesses’ testimony are matters

entrusted exclusively 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 to sustain the appellant’s conviction. The

state presented strong circumstantial evidence that the appellant called Leader

Furniture with the intent to defraud it out of furniture. Evidence was presented

that someone at the appellant's residence forged the name Victoria Spann to a

sales invoice and a security agreement. Testimony was elicited that it was the

appellant who paid off the furniture "purchase" when an investigation began.

Furthermore, the appellant appeared in person at Tennessee Credit to claim her

refund check. The testimony presented at trial, albeit circumstantial,

overwhelmingly points to the appellant as the person who committed the forgery.

A reasonable jury could have concluded the appellant committed every element

of the offense beyond a reasonable doubt. This issue is without merit.



                                          II



       The appellant next contends that the state failed to prove that the crime

occurred in Dickson County. Therefore, she claims that there is insufficient

evidence to establish venue. We disagree.



       Article I, § 9 of the Tennessee Constitution provides that in all criminal

prosecutions by indictment or presentment, the accused has the right to a public

trial in the county in which the alleged crime was committed. See also Tenn. R.

Crim. P. 18. The state has the burden of proving that the offense was committed

in the county of the indictment. Harvey v. State, 376 S.W.2d 497 (Tenn. 1964).

Venue may be shown by a preponderance of the evidence, which may be either



                                         -4-
direct, circumstantial, or a combination of both. Hopper v. State, 326 S.W.2d

448 (Tenn. 1959). Slight evidence with respect to venue will be sufficient to

carry the state's burden of proof. State v. Bennett, 549 S.W.2d 949 (Tenn.

1977). Furthermore, the Rules of Criminal Procedure provide 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 definition of "forge" is to "[a]lter, make, 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 evidence

that the appellant committed one element of the offense in Dickson County.



       The record reveals that the appellant signed the name of Victoria Spann

to a sales invoice and security agreement in Humphreys County. The state

contends that the appellant became nervous when Tennessee Credit 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 entered Dickson County and forged a bogus name on the

refund check. This, the state argues, establishes venue in Dickson County. The

appellant argues that the time of the signing of the refund check she had no

intent to defraud. It is her position that this cannot be used as evidence of

forgery concerning other documents executed on a prior date in a different

county.




                                         -5-
          This issue presents an interesting question. The record establishes that

the appellant placed a phone call to Leader Furniture in Dickson 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 constructively present in the

indictment county with the mental intent to defraud. The rationale for such a

holding is articulated below.



          First, it is a settled principal of law that, when one puts in force an agency

for the commission of a crime, that person, in legal contemplation, accompanies

the agent to the point where the crime becomes effectual.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 driver a forged check.

He requested that the bus driver take the check to a bank in the next county and

cash it. The bus driver, unaware of the forgery, attempted to comply and was

apprehended. He led the authorities to the true offender. The offender was tried

and convicted in the county in which the bank was located. On appeal from his

conviction, the Supreme Court held that when the offense of forgery is

committed through an agent, venue is proper where the acts were done by the

agent. Id. The actual physical location of the true offender is inconsequential.

Id.



          In the present case, the appellant, possessing the requisite mens rea for

forgery, placed a phone call into Dickson County. The clerk at Leader Furniture

filled out a credit application for the appellant. In doing so, she became the

appellant's agent. Because the agent was furthering the appellant's fraud, the

appellant "committed” the mental element of forgery in Dickson County and

became subject to its jurisdiction and venue.




          1
            This, although antiquated but viable legal doctrine, is known as crimen trahit personam. Translated it means the
crime carries the person. In practice, it means that the commission of the crime through an agent gives the courts of the
place w here the c rime is com mitted ju risdiction ove r the principa l offender.


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          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 with the intent to defraud a retailer. This crime was ongoing and

continuous until its consummation, i.e., the signing of the refund check in

Dickson County. Regardless of the rationale used to reach this result, we hold

that venue was proper in Dickson County. This issue is overruled.



                                                                   III



          In her last issue the appellant contends that the trial court improperly

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 court’s findings are correct. State v.

Byrd, 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993). The presumption of

correctness is conditioned upon an affirmative showing that the trial court

considered the sentencing principles and all relevant facts and circumstances.

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



          The record reveals that the 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 appellant on the fact

that she has a long history of committing similar type crimes2 and the fact that

she has shown an "unwillingness on previous occasions to abide by measures

less restrictive than confinement." 3




          2
            The presentence report reveals that the appellant had previously been arrested and/or convicted of fraud involving
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-
        The record reveals that the trial court properly considered the principles of

sentencing. Nothing in the record suggests the trial judge improperly sentenced

the appellant. She has not overcome the presumption of correctness. This

issue is overruled.



        Finding no error of law mandating reversal, we affirm the judgment of the

trial court.



                                           ________________________________
                                           PAUL G. SUMMERS, Judge


CONCUR:




____________________________
DAVID G. HAYES, Judge




____________________________
JERRY L. SMITH, Judge




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