         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                        March 2000 Session

                   STATE OF TENNESSEE v. ELIZABETH DAVIS

                       Appeal from the Criminal Court for Unicoi County
                              No. 4387   Robert E. Cupp, Judge



                                   No. E1999-00373-CCA-R3-CD
                                        September 19, 2000

The appellee, Elizabeth Davis, was indicted by a Unicoi County Grand Jury on November 20, 1995,
for four counts of theft of property. On March 2, 1999, the State submitted a motion to the trial court
to amend the indictment to correct the dates of the offenses set forth in all counts of the indictment
and to reduce the value of the money alleged stolen in Count Four of the indictment. Following a
hearing, the trial court denied the State’s motion, whereupon the State requested the entry of an order
of nolle prosequi as to all counts of the indictment. Instead, at the appellee’s request, the trial court
dismissed the indictment with prejudice pursuant to Tenn. R. Crim. P. 48(b). The State now brings
this appeal as of right challenging both the trial court’s dismissal of the indictment with prejudice
and the trial court’s denial of its motion to amend the indictment. Following a review of the record
and the parties’ briefs, we reverse the order of dismissal and remand this case for proceedings
consistent with this opinion.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed and
                                        Remanded.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., joined.
JOSEPH M. TIPTON, J., filed a dissenting opinion.

Paul G. Summers, Attorney General and Reporter, William C. Bright, Assistant Attorney General,
Ken Baldwin, Assistant District Attorney General, for the appellant, State of Tennessee.

Clifford K. McGown, Jr., Waverly, Tennessee, David F. Bautista, District Public Defender, and
Deborah Black Huskins, Assistant District Public Defender, for the appellee, Elizabeth Davis.

                                                  OPINION
                 In this appeal as of right, the State challenges the trial court’s dismissal with prejudice
of an indictment charging the appellee with four counts of theft and the court’s denial of its motion
to amend the indictment. Following a review of the record and the parties’ briefs, we reverse the
trial court’s order of dismissal and remand this case for proceedings consistent with this opinion.
                                       I. Factual Background
                The appellee was indicted on November 20, 1995, by a Unicoi County Grand Jury
for four counts of theft. Prior to these criminal proceedings, the appellee owned a company named
Cross Country Title and Real Estate Services. The company, which was located successively in
Bryant, Alabama, and Grand Prairie, Texas, regularly closed real estate transactions in Tennessee
on behalf of the Tennessee Department of Transportation. With respect to each transaction, the State
of Tennessee sent the appellee a check for disbursements necessary to acquire the particular tract of
land. The appellee in turn deposited the individual check into an interest bearing escrow account at
Erwin National Bank in Erwin, Tennessee, a town located in Unicoi County. Several people,
including the appellee, a relative and employee of the appellee named Regina Ellis, and, possibly,
another relative and employee named Michael Davis, were authorized to withdraw funds from this
account. The indictment at issue in this case arose from allegations that the appellee had
misappropriated both state funds deposited in this escrow account and interest that had accrued in
the account.

                Count One of the indictment provided that
                Elizabeth Davis heretofore, to wit, on or about the 14th day of May,
                1993, in the County aforesaid and before the finding of this
                indictment, with intent to deprive the owner thereof, did knowingly
                and unlawfully exercise control over $70,100.00 in funds, the
                property of the State of Tennessee, which funds had been entrusted
                to the said Elizabeth Davis, doing business as Cross Country Title
                and Real Estate Services, as a closing agent for right of way
                purchases for the State of Tennessee, Department of Transportation,
                said unlawful act being in violation of Section 39-14-103 . . . .
In identical language, Count Two charged the appellee with the theft of $17,450 on or about May
14, 1993, and Count Three charged the appellee with the theft of $4,100 on or about September 29,
1993. Finally, Count Four provided that
                Elizabeth Davis, on December 28, 1988 to on or about March 31,
                1993, . . . in the County aforesaid and before the finding of this
                indictment, did unlawfully and knowingly obtain control of
                approximately $61,700.00 in interest paid on funds of the State of
                Tennessee, said funds having been deposited by the said Elizabeth
                Davis in an interest bearing escrow account and being the lawful
                property of the State of Tennessee, said unlawful acts being in
                violation of Section TCA 39-14-103, Tennessee Code Annotated . .
                ..

               On March 2, 1999, approximately three years and three months following the
appellee’s indictment, the State filed a motion to amend the indictment to correct the dates of the
offenses. Specifically, the State wished to amend (1) Count One to reflect the commission of the
offense between September 3, 1990, and September 28, 1992; (2) Count Two to reflect the
commission of the offense between November 4, 1990, and September 28, 1992; (3) Count Three


                                                -2-
to reflect the commission of the offense between February 3, 1991, and September 28, 1992; and (4)
Count Four to reflect the commission of the offense between September 11, 1989, and September
28, 1992. The State also asked that the amount of money alleged stolen in Count Four be reduced
to $32,748. At the time of the State’s motion, the appellee’s case was scheduled for trial on March
17, 1999, fifteen days later.

               On the same day on which the State filed its motion to amend the indictment, the trial
court conducted a hearing. At the hearing, the prosecutor explained to the court that another attorney
had originally been assigned to this case. Following his own assignment to and review of the case,
the prosecutor noticed several errors in the indictment. In particular, the dates set forth in Counts
One through Three of the indictment were clearly incorrect as the appellee had allegedly stolen the
funds at issue over a period of years.

                  In addressing the State’s motion, the court initially noted that
                  [f]or the record, I know nothing about this case. I was called and
                  asked if I would meet with the DA’s office and defense attorneys one
                  day last week. I agreed to do that at which time I was somewhat
                  given some idea of the issues in this case and the complexity of it.
Based upon his limited knowledge of the case, the court expressed numerous concerns about the case
and about the State’s motion to amend the indictment. The court voiced its outrage at the State’s
negligence in monitoring the appellee’s activities at the time of the alleged offenses and the
consequent loss of state funds. The court criticized the State’s investigation and prosecution of the
thefts and expressed doubts concerning the strength of the State’s case. The court also noted the
length of time the case had been pending on the court’s docket and concluded that it would not
continue the date of the trial under any circumstances. Accordingly, the court observed that, were
it to grant the State’s motion to amend the indictment, defense counsel would not have adequate time
to adjust the appellee’s defense to the amended indictment. The court asserted, “[T]he best team of
lawyers in the world couldn’t get ready for a case of this magnitude.”

               Defense counsel then interjected that she had, in fact, “relied upon the dates alleged
in the indictment” in preparing for trial. Specifically, she stated:
               There’s no way I could defend against [the amended indictment]. A
               time frame of a couple of years, I can’t - - I - - I’m prepared for trial
               based upon the specific dates which the State set out in their 1995
               indictment.
However, defense counsel also admitted that she had received full discovery from the State by late
November 1998 and, indeed, had reviewed discovery materials together with the prosecutor. She
conceded that she had “always known” that the State could not prove that the alleged thefts occurred
on the dates set forth in the original indictment and noted that those dates did not match the
chronology of events set forth in discovery materials. Finally, she introduced as exhibits several
documents that she had received during discovery, including an April 19, 1995 report by Special
Agent Shannon Morton of the Tennessee Bureau of Investigation, a transcript of an April 18, 1995



                                                 -3-
telephone interview between Special Agent Morton and Regina Ellis, and a January 1995
“Department of Transportation Review of Misappropriated Right-of Way Funds.”

                 These discovery materials, particularly the Department of Transportation Review, set
forth in detail the nature of the State’s case, including the different amounts of state funds allegedly
stolen by the appellee and the chronology of events underlying the State’s prosecution. Specifically,
the materials indicate that the appellee’s company, Cross Country Title and Real Estate Services,
opened the interest bearing escrow account at the Erwin National Bank on August 25, 1989. Ensuing
deposits into the escrow account primarily comprised “state-issued warrants” or checks, although
the appellee apparently commingled some personal funds with the state funds in the account. In all,
there were forty-four individual deposits of state funds totaling $2,803,810.27. Deposits originating
from sources other than the State amounted to $126,739.27.

                On September 10, 1990, the Department of Transportation sent to the appellee the
$70,100 referred to in Count One of the indictment for the purpose of closing a real estate transaction
in Knox County. The appellee deposited the money into the escrow account at Erwin National Bank,
but failed to complete the closing. The Department began to make inquiries concerning this closing
in September of 1992.1

                On September 25, 1990, the Department similarly sent the appellee the $17,450
referred to in Count Two of the indictment for the purpose of closing the purchase of yet another
tract of land. Again, the appellee deposited the money into the escrow account at Erwin National
Bank, and, again, the appellee failed to complete the requested closing. The Department began to
make inquiries concerning this closing in January of 1993.

               On May 14, 1993, the Department asked the appellee to return both the $70,100 and
the $17,450. When the appellee failed to comply with the Department’s request, the Department
reported the loss of the state funds to the Division of State Audit of the Comptroller’s Office on
September 28, 1993.

               On the following day, September 29, 1993, the appellee informed the Department that
she had lost another $4,100, the amount referred to in Count Three of the indictment. This money
had been sent to the appellee on January 17, 1991, for the purpose of closing the purchase of a tract
of land, and the appellee had deposited the money into the escrow account at the Erwin National
Bank. Once again, the appellee failed to complete the closing and was unable to reimburse the
$4,100 to the State.

               According to the Department of Transportation Review, the appellee was also unable
to account for $34,601.07 of interest earned on all funds deposited into the escrow account at the
Erwin National Bank since August 25, 1989. The Review further noted the loss of $28,649.34 of


         1
          According to the prose cutor, the D epartmen t of Transp ortation exp lained to him that it did not investigate the
appellee earlier because its agents frequently require several years to close a real estate transaction.

                                                            -4-
interest earned on state funds deposited into a second escrow account at the First Tennessee Bank
in Chattanooga, Tennessee between December 30, 1988, and April 1, 1992. The total amount of
interest attributable to state funds and for which there was no accounting was $61,700, the amount
referred to in Count Four of the indictment.

               The Department of Transportation Review alleged that, during the period in which
the appellee maintained the escrow account at Erwin National Bank, she periodically withdrew funds
from that account for her personal use and for her company’s expenses. For example, she disbursed
money to various relatives, including paying a relative’s school tuition. She paid rent and purchased
gasoline, “labor expenses,” and “craft supplies.” Additionally, she transferred a significant amount
of money from the escrow account to her personal bank account in Grand Prairie, Texas.

                 Notwithstanding defense counsel’s full knowledge of the above information for at
least three months before the State’s motion to amend the indictment and approximately four months
before the scheduled trial date, the court denied the State’s motion. In this regard, the court
reiterated its refusal to continue the trial date and its opinion that defense counsel would be unable
to adjust the appellee’s defense to the amended indictment within the remaining fifteen days before
trial. Applying Tenn. R. Crim. P. 7(b), the court concluded that, although the proposed amendments
would not charge additional or different offenses,
                 to amend this indictment at this late stage after the State’s had all this
                 time with not only the TBI, Department of Transportation, and what
                 other agencies I’m not sure, work on this case to attempt to amend
                 this case on March the 2nd which it’s set for March 17th for trial, . . .
                 in fact would prejudice - - prejudice this defendant.

               Following the court’s ruling, the State indicated its intention to file a motion pursuant
to Tenn. R. App. P. 9 requesting an interlocutory appeal. The court initially stated that it would grant
such a motion but later rescinded this statement at a hearing on March 18, 1999. At this March 18
hearing, the court announced, instead, that it intended to conduct a trial in this case within ten
working days. In light of the court’s ruling upon its motion to amend the indictment, the State
requested the entry of an order of nolle prosequi as to all counts of the indictment. The appellee in
turn asked that the trial court dismiss the indictment with prejudice pursuant to Tenn. R. Crim. P.
48(b). The trial court granted the appellee’s motion, stating
               I just don’t think this case should have ever been here. . . . [T]his case
               is a travesty of justice. That’s all it is. I mean, the State has failed to
               do anything and now they are trying to put the burden on you to
               correct the situation that they couldn’t take care of.

                                            II. Analysis
a.     Tenn. R. Crim. P. 48(b)
               Again, the State challenges the trial court’s dismissal of the indictment with prejudice
pursuant to Tenn. R. Crim. P. 48(b). We initially note that the decision to dismiss an indictment
pursuant to Tenn. R. Crim. P. 48(b) is within the discretion of the trial court and will not be reversed


                                                  -5-
by this court absent an abuse of that discretion. State v. Benn, 713 S.W.2d 308, 311 (Tenn. 1986);
State v. Jones, No. 01C01-9212-CR-00384, 1993 WL 345544, at *1 (Tenn. Crim. App. at Nashville,
September 9, 1993). “The abuse of discretion standard is intended to constrain appellate review and
implies ‘less intense appellate review and, therefore, less likelihood of reversal.’” State v. Looper,
No. M1999-00662-COA-R3-CV, 2000 WL 354404, at *3 (Tenn. App. at Nashville, April 7,
2000)(citation omitted). Nevertheless, our supreme court has observed that an appellate court should
find an abuse of discretion when a trial court has applied an incorrect legal standard or reached a
decision that is against logic or reasoning and has caused an injustice to the complaining party. State
v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999); State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997);
Looper, No. M1999-00662-COA-R3-CV, 2000 WL 354404, at *3. Similarly, this court has
observed that “[a]n abuse of discretion standard contemplates us giving the trial court the benefit of
its decision as long as that decision is supported by material evidence and is not arbitrary, capricious
or illegal.” State v. Bordis, No. 01C01-9211-CR-00358, 1994 WL 672595, at *18 (Tenn. Crim.
App. at Nashville, December 1, 1994).

                 Tenn. R. Crim. P. 48(b) provides in relevant part that,
                 [i]f there is unnecessary delay in presenting the charge to a grand jury
                 against a defendant who has been held to answer to the trial court, or
                 if there is unnecessary delay in bringing a defendant to trial, the court
                 may dismiss the indictment . . . .
A dismissal pursuant to this rule can be with or without prejudice. Benn, 713 S.W.2d at 310. On
the one hand, when a trial court’s application of this rule rests upon due process concerns occasioned
by a delay between the commission of an offense and the initiation of prosecution, U.S. CONST .
amend. V and XIV, TENN. CONST . art. I, § 9, or the constitutional right to a speedy trial following
the initiation of prosecution, U.S. CONST . amend. VI and XIV, TENN. CONST . art. I, § 9, Tenn. Code
Ann. § 40-14-101 (1997), the dismissal bars a subsequent re-indictment and prosecution. On the
other hand, when the application of the rule rests upon a non-constitutional ground, a dismissal is
normally without prejudice. Benn, 713 S.W.2d at 310.

                The constitutional standards applicable to pre-accusatorial and pre-trial delays have
been clearly set forth in federal and Tennessee case law. Generally, in order to establish a due
process violation stemming from a pre-accusatorial delay, an accused must prove the following
prerequisites: (1) there was a delay; (2) the accused sustained actual prejudice as a direct and
proximate result of the delay; and (3) the State caused the delay in order to gain a tactical advantage
over the accused or to harass the accused. State v. Utley, 956 S.W.2d 489, 495 (Tenn. 1997)(citing
United States v. Marion, 404 U.S. 307, 324-325, 92 S. Ct. 455, 465 (1971), and State v. Gray, 917
S.W.2d 668, 671 (Tenn. 1996)); see also State v. Carico, 968 S.W.2d 280, 284-285 (Tenn. 1998).
In contrast, when determining whether a defendant was denied his right to a speedy trial, the trial
court must balance the following four factors: (1) the length of the delay; (2) the reason for the delay;
(3) whether the defendant asserted a claim to this right; and (4) whether the defendant was prejudiced
by the delay. Utley, 956 S.W.2d at 492 (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182,
2192 (1972)); see also State v. Vickers, 985 S.W.2d 1, 5 (Tenn. Crim. App. 1997).



                                                  -6-
               As to unnecessary delay that falls short of constitutional proportions, our supreme
court in Benn articulated the analysis required before a trial court may dismiss an indictment under
Tenn. R. Crim. P. 48(b):
               The facts to be considered in passing on a motion to dismiss under
               Rule 48(b) where there has been no constitutional violation are the
               length of the delay, the reasons for the delay, the prejudice to the
               defendant, and waiver by the defendant. Of course, these are the
               same factors that determine a speedy trial constitutional violation,
               except for the factor of a defendant’s assertion of his right to a speedy
               trial.
713 S.W.2d at 311. Again, the supreme court affirmed that, in the absence of a constitutional
violation, dismissal with prejudice “should be utilized with caution and only after a forewarning to
prosecutors.” Id. at 310. Moreover, if a trial court finds it appropriate to dismiss an indictment with
prejudice on the basis of a non-constitutional ground, the court “must make express findings of fact
on each of the [above] factors.” Id. at 311.

                 In dismissing the indictment in this case, the trial court did not address whether any
pre-accusatorial or pre-trial delay had violated the appellee’s constitutional rights, nor did the trial
court make findings concerning the factors set forth in Benn. Moreover, we note that, as it currently
stands, the record does not support the trial court’s dismissal of the indictment under Tenn. R. Crim.
P. 48(b), whether on constitutional or non-constitutional grounds. The appellee was indicted
approximately three years and two months following the first inquiries by the Tennessee Department
of Transportation into the appellee’s activities. Her trial was scheduled approximately three years
and four months thereafter. The trial court itself noted the complexity of the case, but the prosecutor
also tacitly conceded some negligence on the part of the State in prosecuting this case. Nevertheless,
the record is devoid of evidence that the State intentionally caused the delays in order to gain a
tactical advantage over the appellee or to harass the appellee. The record is also devoid of any
assertion by the appellee of her right to a speedy trial or any request that her case be scheduled for
trial. Indeed, the record reflects that the appellee was released on bond and living in Texas following
her indictment and pending her trial and, at one point, notified the court that she was unable to travel
to Tennessee for six months due to poor health. Finally, the record contains no evidence that the
delays prejudiced the appellee’s ability to prepare and present a defense, and the appellee has never
asserted any prejudice. Accordingly, we must conclude that the trial court abused its discretion in
dismissing the indictment pursuant to Tenn. R. Crim. P. 48(b).

b.      Tenn. R. Crim. P. 7(b)
                The State additionally challenges the trial court’s denial of its motion to amend the
indictment in this case pursuant to Tenn. R. Crim. P. 7(b), which denial precipitated the State’s
request for the entry of an order of nolle prosequi as to all counts of the indictment. The denial of
a motion to amend an indictment, like the dismissal of an indictment pursuant to Tenn. R. Crim. P.
48(b), is a matter within the trial court’s discretion, and this court will reverse the trial court’s
decision only if that discretion has been abused. State v. Kennedy, 10 S.W.3d 280, 283 (Tenn. Crim.
App.), perm. to appeal denied, (Tenn. 1999).


                                                  -7-
                The legal standard applicable to the amendment of an indictment is set forth in Tenn.
R. Crim. P. 7(b), which provides that
                [a]n indictment . . . may be amended in all cases with the consent of
                the defendant. If no additional or different offense is thereby charged
                and no substantial rights of the defendant are thereby prejudiced, the
                court may permit an amendment without the defendant’s consent
                before jeopardy attaches.
This rule is designed to protect several constitutional rights, including the right to an indictment by
a grand jury, TENN. CONST . art. I, § 14, and the right to fair notice of the nature and cause of the
accusation, U.S. CONST . amend. VI and XIV, TENN. CONST . art. I, § 9.

                In this case, the appellee did not consent to the proposed amendments to the
indictment. However, it is undisputed that jeopardy had not yet attached in the appellee’s case.
Thus, the trial court could grant the State’s motion if the proposed amendments did not charge
additional or different offenses or otherwise prejudice substantial rights of the appellee.

                In considering whether the proposed amendments charged additional or different
offenses than those presented to the Unicoi County Grand Jury, we note that the allegations in the
original indictment and the proposed amended indictment both concern the appellee’s theft of funds
entrusted to her by the Tennessee Department of Transportation for the purchase of three specific
tracts of land and the appellee’s theft of all interest earned on state funds deposited in an escrow
account at Erwin National Bank. Although the amendments increase or change the time frame in
which the offenses occurred, this court has previously held that an amendment to an indictment
changing the date of the commission of the offense does not charge a defendant with a new or
additional crime. Kennedy, 10 S.W.3d at 284 (citing, in part, State v. Wells, No. 01C01-9505-CR-
00146, 1997 WL 311924, at **5-6 (Tenn. Crim. App. at Nashville, June 6, 1997), in which this court
held that amendments to charges of sexual battery that changed “in 1990" and “in 1991" to “on a day
before April 22, 1991" did not allege new or different offenses despite the defendant’s argument that
the increased time frame forced him to defend against charges that were not in the original
indictment). Moreover, because an indictment for an offense encompasses, by implication, all lesser
included offenses, Strader v. State, 362 S.W.2d 224, 228 (Tenn.1962), State v. Morgan, No. 03C01-
9902-CR-00072, 2000 WL 45723, at *2 (Tenn. Crim. App. at Knoxville, January 21, 2000), perm.
to appeal denied, (Tenn. 2000), Tenn. R. Crim. P. 31(c), the State’s proposed amendment to the
value of the money alleged stolen in Count Four did not charge an additional or different offense.
Accordingly, the sole remaining question is whether the proposed amendments otherwise prejudiced
a substantial right of the appellee.

                As noted previously, under the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, Section 9 of the Tennessee Constitution, an accused is entitled to
notice of the nature and cause of the accusation. State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997).
In order to satisfy this constitutional mandate, an indictment must provide a defendant with notice
of the offense charged, provide the court with an adequate ground upon which a proper judgment
may be entered, and provide the defendant with protection against double jeopardy. State v.


                                                 -8-
Lemacks, 996 S.W.2d 166, 172 (Tenn. 1999); Hill, 954 S.W.2d at 727; State v. Byrd, 820 S.W.2d
739, 740-741 (Tenn. 1991). Tenn. Code Ann. § 40-13-202 (1997) similarly requires that
                [t]he indictment . . . state the facts constituting the offense in ordinary
                and concise language, without prolixity or repetition, in such a
                manner as to enable a person of common understanding to know what
                is intended, and with that degree of certainty which will enable the
                court on conviction, to pronounce the proper judgment . . . .
A formally amended indictment will generally provide an adequate ground upon which a proper
judgment may be entered and protection against double jeopardy but, if the amendment is proffered
shortly before trial, may fail to afford meaningful notice of the charged offense.

                 That having been said, the above constitutional and statutory mandates generally do
not require that the time of the commission of the offense be stated in the indictment. “The rule of
law is well-established in Tennessee that the exact date, or even the year, of an offense need not be
stated in an indictment . . . unless the date or time is ‘a material ingredient in the offense.’” Byrd, 820
S.W.2d at 740; see also Tenn. Code Ann. § 40-13-207 (1997). Therefore, the date of an offense may
generally be amended under Tenn. R. Crim. P. 7(b). Kennedy, 10 S.W.3d at 283. In a closely
related context, Tennessee courts have also observed that a variance between the time of the
commission of the offense alleged in the indictment and the time established by proof at trial is rarely
fatal. State v. Ealey, 959 S.W.2d 605, 608 (Tenn. Crim. App. 1997)(“[T]he State is not required to
strictly show that the offenses occurred on or during the dates alleged in the [indictment] unless the
dates are essential to proving the offense or imposing a defense.”); State v. West, 737 S.W.2d 790,
792-793 (Tenn. Crim. App. 1987)(holding that, unless the time of the commission of the offense is
an essential element of the offense or time will bar the commencement of the prosecution, “the time
of the commission of the offense averred in the indictment is not material and proof is not confined
to the time charged”); State v. Fears, 659 S.W.2d 370, 374 (Tenn. Crim. App. 1983)(enunciating the
same principle); State v. Edmonds, No. 02C01-9708-CC-00334, 1998 WL 527232, at *4 (Tenn.
Crim. App. at Jackson, August 25, 1998)(“[T]he state has no burden to prove that an offense
happened on the exact date alleged in the indictment.”); State v. Watson, No. 01C01-9606-CC-
00260, 1998 WL 10881, at **4-5 (Tenn. Crim. App. at Nashville, January 14, 1998)(“Variances
between the indictment and the proof as to when the offense occurred are particularly innocuous.”).
Additionally, an eleventh hour amendment that merely charges a lesser included offense will not
implicate constitutionally guaranteed notice requirements. Cf. State v. Burns, 6 S.W.3d 453, 465-
467 (Tenn. 1999).

               In the final analysis, the extent to which a proposed amendment to an indictment or
a variance affects “substantial rights” of a defendant depends in large part upon the extent to which
the amendment or variance affects the defendant’s ability to prepare for trial and present a defense.
State v. Mayes, 854 S.W.2d 638, 640 (Tenn. 1993)(citing Berger v. United States, 295 U.S. 78, 82,
55 S. Ct. 629, 629 (1935)); State v. Badgett, 693 S.W.2d 917, 919 (Tenn. Crim. App. 1985).
               General agreement exists that the concept of “prejudice” to the
               “substantial rights” of the accused requires an inquiry that focuses on
               the element of surprise. . . . [Therefore,] the defense, in opposing an


                                                   -9-
                amendment [to an indictment], must make some showing that the
                proposed change introduces an element of surprise that will interfere
                with the defense’s ability to defend against the charges.
WAYNE R. LA FAVE ET AL., CRIMINAL PROCEDURE § 19.5(B) (West Group ed., 2d ed.
1999)(footnotes omitted). In this case, the record is devoid of any evidence of surprise or confusion
concerning the factual basis of the indictment. Rather, it is apparent from defense counsel’s
statements at the March 2 hearing and the exhibits introduced by defense counsel at the hearing that
she was aware at all times that the dates alleged in the indictment were incorrect and, furthermore,
that she was fully apprised of the relevant time periods and the relevant amounts of stolen funds by,
at the latest, November of 1998. Indeed, as noted previously, defense counsel stated that the
prosecutor had reviewed the appellee’s case with her. Significantly, she did not allege that the
prosecutor misled her concerning the factual basis of the indictment, including the relevant time
periods of the offenses. In the absence of any evidence of surprise, we must conclude that the
proposed amendments did not affect substantial rights of the appellee, and the trial court abused its
discretion in denying the State’s motion to amend the indictment.

c.      Jurisdiction
                  Although not raised by either party on appeal, we nevertheless address an issue that
troubled the trial court. Tenn. R. App. P. 13(b). At the March 2 hearing, the trial court expressed
its doubt that Unicoi County was the appropriate venue in this case. Specifically, the court noted that
the thefts in this case related to the writing of checks by the appellee in Alabama or Texas requesting
the disbursement of funds held in an escrow account in Unicoi County. The funds were apparently
disbursed to individuals or entities outside Tennessee. Accordingly, the trial court asserted, “I have
a problem that we’re in essence prosecuting an escrow account.”

                 Tenn. Code Ann. § 39-11-103(a) (1997) provides that
                 [e]very person, whether an inhabitant of this or any other state or
                 country, is liable to punishment by the laws of this state, for an
                 offense committed in this state, except where it is by law cognizable
                 exclusively in the courts of the United States.
Moreover, when an accused is liable to punishment by the laws of this state under Tenn. Code Ann.
39-11-103(a), she is entitled to a trial in the county in which the offense was committed. TENN.
CONST . art. I, § 9; Tenn. R. Crim. P. 18(a); see also Ellis v. Carlton, 986 S.W.2d 600, 601 (Tenn.
Crim. App.), perm. to appeal denied, (Tenn. 1998). In other words, “the jurisdiction of the trial court
is limited to the crimes which occur within the territorial boundaries of the county in which it sits.”
Ellis, 986 S.W.2d at 601.

                We initially emphasize that, according to the record currently before this court, if the
instant offenses occurred in Tennessee at all, they occurred in Unicoi County. Thus, the question
is not whether Unicoi County is the appropriate venue but, more broadly, whether Tennessee
possesses territorial jurisdiction. In this regard, section (b) of Tenn. Code Ann. § 39-11-103 provides
a clear answer. According to that statutory section,



                                                 -10-
                 (1) When an offense is commenced outside this state and
                 consummated in this state, the person committing the offense is liable
                 for the punishment in this state in the county in which the offense was
                 consummated, unless otherwise provided by statute.
                 (2) It is no defense that the person charged with the offense was
                 outside this state when the offense was consummated if the person
                 used:
                          (A) An innocent or guilty agent; or
                          (B) Other means proceeding directly from the person.
Id. In this case, as noted by the trial court, the appellee allegedly commenced her offenses by writing
checks in Alabama or Texas drawing upon state funds held in the escrow account at Erwin National
Bank. The record before this court further indicates that the appellee’s offenses, if proven by the
State at trial, were indeed consummated in Unicoi County.

                In State v. Legg, 9 S.W.3d 111, 115 (Tenn. 1999), the supreme court agreed that in
most cases a crime is consummated when the last element necessary for the commission of the crime
is satisfied. In order to establish the theft offenses charged in the indictment, the State would be
required to prove beyond a reasonable doubt that (1) the appellee knowingly exercised control over
the state funds; (2) the appellee exercised control over the funds with the intent to deprive the State
of the funds; and (3) the appellee did not have the State’s effective consent. Tenn. Code Ann. § 39-
14-103. Thus, the appellee’s exercise of control over the state funds was a prerequisite to
consummation of the offenses. Unlike the trial court, we do not believe that the mere act of writing
checks or the distribution of those checks to vendors or other beneficiaries constituted the exercise
of control over the state funds. Rather, we conclude that the appellee exercised control over the
funds when the bank in Unicoi County received a check written by the appellee and requesting the
disbursement of funds from the escrow account, and the bank honored the check by disbursing state
funds.2 See, e.g., Clark v. State, 287 A.2d 660, 667 (Del. 1972)(holding that, when a defendant
committed the offense of embezzlement by writing checks on an “attorney’s” account, venue was
proper in the county where the bank account was located because the embezzlement culminated
“when the check[s] clear[ed] through the account in the bank”); State v. Frank, 355 So. 2d 912, 916-
917 (La. 1978)(holding that, for the purpose of establishing the appropriate venue for the prosecution
of a theft offense, “conversion” occurred when a New Orleans bank’s cashier’s check, following a
forged endorsement and deposit in a Baton Rouge bank, was presented at the New Orleans bank for
payment and was honored); State v. Riley, 151 S.E.2d 308, 322-323 (W. Va. 1966)(holding that,
when a defendant embezzled Board of Education funds by writing checks on a bank account, “venue
. . . [was found] in the county where the drawee bank . . . [was] located and the check . . . [was]
deposited for payment, and until the check . . . [was] paid there . . . [was] no conversion or
embezzlement”). Contingent upon the State’s offer of proof at trial and the jury’s findings, the

         2
          Because we conclude that the offenses were not consummated in either Alabama or Texas, we need not decide
whether theft is a continuing offense. See Legg, 9 S.W.3d at 115-118 (holding that, although the kidnapping offense was
both commenced and consummated in Alabama, kidnapping is a continuing offense and, therefore, “the State needed
only to show that at lea st one eleme nt of the crime c ontinued in to Tenne ssee fo r territorial jurisd iction to pro perly
attach”).

                                                           -11-
remaining elements were simultaneously satisfied when the checks related to the appellee’s personal
expenses or her company’s expenses and the disbursements were not authorized by the Tennessee
Department of Transportation.

                As noted above, the appellee’s absence from Tennessee at the time the offenses were
consummated provides no defense to the court’s exercise of jurisdiction. Tenn. Code Ann. § 39-11-
103(b)(2) embodies the principle, also recognized in other states, that
                 if a person, while in one state sets in motion a force which operated
                 in another state, the actual presence of the offender in the other state
                 is not necessary to make . . . [her] amenable to its laws for the crime
                 committed there, if an offense is the immediate result of . . . [her]
                 action.
State v. Butler, 724 A.2d 657, 663 (Md. App. 1999); see also, e.g., In Re Vasquez, 705 N.E.2d 606,
610-611 (Mass. 1999); Keselica v. Commonwealth, 480 S.E.2d 756, 758 (Va. App. 1997).

                                           III. Conclusion
                 For the foregoing reasons, we reverse the order of the trial court dismissing the
indictment and remand this case for further proceedings. Specifically, upon a request by the
appellee, the trial court should conduct a hearing for the purpose of determining whether a dismissal
of the indictment is appropriate under the standards enunciated in this opinion. If, at that hearing,
no additional evidence is presented satisfying those standards, the trial court should permit the
amendment of the indictment, and this case should proceed to trial.



                                              ___________________________________
                                              NORMA McGEE OGLE, JUDGE




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