State of Tennessee v. Dorothy Sheldon ( 1997 )

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
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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.
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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.
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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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