State v. Elizabeth Davis

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

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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

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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.

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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

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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).

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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).

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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.

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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

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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,

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(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”).

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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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