FILED

June 26, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

APRIL SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9605-CC-00227

)

Appellee, )

)

) HUMPHREYS COUNTY

VS. )

) HON. ROBERT E. BURCH

JAMES R. LEMACKS, ) JUDGE

)

Appellant. ) (DUI)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF HUMPHREYS COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

J.P. BRADLEY JOHN KNOX WALKUP

110 West Main Street Attorney General and Reporter

Waverly, TN 37185

JANIS L. TURNER

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243

DAN ALSOBROOKS

District Attorney General

GEORGE SEXTON

Assistant District Attorney General

Humphreys County Courthouse

Room 206

Waverly, TN 37185

OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant appeals as of right pursuant to Rule 3 of the Tennessee

Rules of Appellate Procedure. He was convicted by a Humphreys County jury

of driving while intoxicated and sentenced to 11 months and 29 days, suspended

except for 30 days with the remainder to be served on probation. His driver’s

license was suspended for one year and he was ordered to attend DUI school.

He appeals his conviction raising two issues for review: (1) That the trial court

erred in charging criminal responsibility when the Defendant was not formally

indicted on this charge; and (2) that the trial court erred in charging criminal

responsibility when the other party involved was never charged with any offense.

 Although not precisely on either of the issues raised, we reverse and remand for

a new trial.

The Defendant and three other individuals, Sanchez, Duncan, and Lucas

planned to attend a party on October 30, 1993. The four were soldiers at Ft.

Campbell Army Post near Clarksville, Tennessee and they drove to Waverly,

Tennessee for the party. The Defendant drove the others in his vehicle, a tan

Ford Bronco. The party was being held at Rosie Matthews’ (a.k.a. Rose

Bramlett’s) house, who was Sanchez’ girlfriend. The four went to the party and

to Pippin’s, a bar in Waverly. They returned to the house in the early morning

hours of October 31 to continue the party. All of them had been drinking beer

that night, although Lucas testified that she stopped drinking before the others

because the Defendant began acting strangely and she did not know him very
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well. After they returned to the house, Sanchez and his girlfriend had a fight and

he wanted to leave the party.

It is at this point in the evening when the testimony of the witnesses at the

trial conflicts regarding who was driving the Bronco. The State presented the

following evidence. The four left the party and proceeded down Clydeton Road.

It is undisputed that Duncan was in the left rear passenger seat and that Lucas

was in the right rear passenger seat. Less than a mile from the house, the

vehicle left the roadway on the right side and traveled 285 feet in a ditch before

it came to rest at an embankment. Lucas testified at trial that the Defendant was

driving the Bronco. She stated that she offered to drive because she was

relatively sober, but that the Defendant refused. She testified that the Defendant

started in reverse with the emergency brake still on, but then took the brake off

and proceeded down the road. Soon thereafter, the vehicle left the roadway.

Lucas testified that, after the wreck, Sanchez opened the driver’s side door from

the outside and unlocked the Defendant’s seatbelt. The Defendant fell diagonally

into the passenger seat because the vehicle was at an angle. Lucas heard two

thumps and it appeared that the Defendant’s head was cut and bleeding.

Sanchez explained that the Defendant hit his head on the windshield and the

dashboard after his seatbelt was removed. Another vehicle pulled up and

Sanchez got a ride back to the house to get help.

Tennessee State Trooper Mike Smothers was dispatched to the accident

scene, along with an ambulance. Sanchez had a bump on the head and Lucas

had a back injury and had to be extracted from the vehicle. The Defendant was

being treated in the back of the ambulance when Trooper Smothers interviewed
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him. He testified that the Defendant was initially uncooperative and would not

answer his questions. He appeared intoxicated and was arguing with the EMT

personnel. Lucas had stated that the Defendant was driving and the trooper

confronted him. Trooper Smothers asked whether he was driving, and the

Defendant admitted that he was driving and that he just missed the curve and ran

off the road. The Defendant was taken to a hospital and consented to a blood

alcohol test, resulting in a .20% blood alcohol level.

Trooper Smothers testified regarding the head injuries received by the

Defendant and Sanchez as they corresponded to the crack in the vehicle’s

passenger side windshield. He stated that Sanchez could have hit the windshield

without receiving cuts because of the safety glass. He also testified that the

Defendant’s cuts on the right side of his head could possibly be attributed to

hitting the windshield if his head was turned to the left, but were not consistent

with a passenger facing forward because the cuts would be on the front of the

head.

The Defendant called Jennifer Barker, a woman who was also at the party,

to testify that she saw Sanchez, not the Defendant, get into the driver’s seat of

the Bronco and drive away. She stated that everyone had been drinking and that

Sanchez “was very intoxicated.” Sanchez had a problem backing up and “spun

gravel” when he pulled onto the road. She testified that he returned shortly,

“saying that he’d had a wreck and that he thought he’d killed one of them.”

However, Barker also said that Sanchez told her that the Defendant was driving

and that it threw him (Sanchez) out the passenger side window and threw the

Defendant into the passenger seat.
1

 Tenn. Code Ann. § 55-10-401. 

2

 Tenn. Code Ann. § 39-11-402(2),(3).

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The Defendant testified that Sanchez was driving the vehicle prior to the

accident. After the wreck, he saw Sanchez at the driver’s side window saying

“we got in a wreck” and that he would get help. The Defendant testified that he

felt blood on his head and passed out again on the dashboard. He was pulled

out of the truck through the driver’s side because the passenger door was

obstructed by the embankm ent. He stated that Sanchez was drinking but that he

couldn’t answer whether Sanchez was intoxicated and how much he’d had to

drink.

The Defendant was indicted in Humphreys County for vehicular assault

and driving while intoxicated. Sanchez was not prosecuted for any crime. The

jury found the Defendant guilty of driving while intoxicated.1

In his first issue, the Defendant argues that the court erred by charging the

jury with criminal responsibility because it was not formally charged in the

indictment. After the conclusion of the proof in this case, the State requested that

the jury be charged on crim inal responsibility2 based on the proof at trial

suggesting that Sanchez may have been the driver of the vehicle.

An indictment or presentment must provide notice of the offense charged,

an adequate basis for the entry of a proper judgment, and suitable protection

against double jeopardy. State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996);

State v. Byrd, 820 S.W .2d 739, 741 (Tenn. 1991); State v. Lindsay, 637 S.W.2d

886, 890 (Tenn. Crim. App.1982). The indictment “must state the facts in
3

 We note tha t the Defe ndant w as also c harged with vehicu lar assa ult and wa s acqu itted of that 

offense.

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ordinary and concise language in a manner that would enable a person of

common understanding to know what is intended, and with a degree of certainty

which would enable the court upon conviction, to pronounce the proper

judgment.” Warden v. State, 214 Tenn. 391, 381 S.W.2d 244, 245 (1964).

The indictment in the case at bar charged the Defendant with driving while

intoxicated, requiring that the following elements be proved: (1) That the

Defendant was driving or in control of a motor vehicle; (2) that the vehicle was

driven on a public road; and (3) that the Defendant was under the influence of an

intoxicant. Initially, we note that criminal responsibility for the conduct of another

is not a statutory offense, but rather a legal theory of criminal liability by which a

defendant may be convicted for an offense when there are multiple actors

involved. See Tenn. Code Ann. § 39-11-402. 

The State decided that criminal responsibility was raised by the proof as

a theory of liability based on the Defendant’s position that he was not the driver

of the vehicle and the State requested that an instruction be given to that effect.

We do not believe that criminal responsibility must have been included in the

indictment. The indictment gave the Defendant notice of the offense charged and

an adequate basis for the entry of a proper judgment, and also provided

protection against double jeopardy. The Defendant was only charged with and

at risk of being convicted for DUI. 3 He was apprised of the elements of the crime

against which he was to defend and for which the trial court entered a judgment.

Although we do not know upon what theory the jury based its verdict, the
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Defendant cannot be charged with another DUI offense based on that same

incident. Thus, he is not at risk for double jeopardy. 

We do not believe that our law requires criminal responsibility for the

conduct of another to be charged in the indictment. In this case, the State had

no notice of the defense that Sanchez m ay have been the driver. Because the

evidence at trial raised the issue, it was not improper to request the charge at the

conclusion of the proof.

In his second issue, the Defendant contends that the trial court erred by

charging the jury on criminal responsibility when the other person was never

charged with the offense and no proof was presented at trial regarding his degree

of intoxication. We first note that the fact that a party to an offense has not been

charged or convicted is not a defense. However, we conclude that charging

criminal responsibility for the conduct of another led to error in the case sub

judice for another related reason. 

One is criminally responsible as a party to an offense “if the offense is

committed by the person’s own conduct, by the conduct of another for which the

person is criminally responsible, or by both.” Tenn. Code Ann. § 39-11-401.

Furthermore, the legislature has provided that a defendant may be crim inally

responsible based on the conduct of another “on proof of commission of the

offense” and that the defendant was a party. Tenn. Code Ann. § 39-11-407. It

is not a defense that “[t]he person for whose conduct the defendant is criminally

responsible has been acquitted, has not been prosecuted or convicted, has been

convicted of a different offense or different type or class of offense, or is immune
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from prosecution.” Tenn. Code Ann. § 39-11-407(2). The Sentencing

Commission Comments to section 407 state the following policy determination

for offenses based on criminal responsibility for the conduct of another:

This section reflects a policy determination that, in a case

involving multiple offenders, a conviction should be sustained where

there is sufficient evidence to support it, regardless of whether there is

a failure of proof in another case involving other people. Thus, the

defendant may be convicted whether the other parties to the offense

are convicted, acquitted, or incapable of criminal responsibility.

Thus, upon proof that an offense has been committed, with multiple actors,

even if another person was the principal, a defendant may be convicted for the

conduct of the other based on one of three theories:

(1) Acting with the culpability required for the offense, the person

causes or aids an innocent or irresponsible person to engage in

conduct prohibited by the definition of the offense;

(2) Acting with intent to promote or assist the commission of the

offense, or to benefit in the proceeds or results of the offense, the

person solicits, directs, aids, or attempts to aid another person to

commit the offense; or

(3) Having a duty imposed by law or voluntarily undertaken to

prevent commission of the offense and acting with intent to benefit in

the proceeds or results of the offense, or to promote or assist its

commission, the person fails to make a reasonable effort to prevent

commission of the offense.

 Tenn. Code Ann. § 39-11-402; see also State v. Williams, 920 S.W.2d 247, 257-

58 (Tenn. Crim. App. 1995); State v. Gennoe, 851 S.W.2d 833, 836 (Tenn. Crim.

App. 1992); State v. Brown, 756 S.W.2d 700, 703 (Tenn. Crim. App. 1988).
4We note that the Defendant has included in his brief what is ostensibly intended to be an 

affidavit from the jury foreperson describing their deliberations and what theory they used to 

convict. T he De fendan t claims that the trial cou rt adm itted the affida vit at the m otion for ne w trial. 

First, we have found nothing in the technical record documenting the hearing on the motion for

new trial no r the a ffidavit. Second, admittin g doc um enta tion of a jur y’s delib eratio ns is

inadmissible unless under specific circumstances pursuant to Rule 606(b) of the Tennessee

Rules o f Evidenc e. Ther efore, we do not co nsider this affidavit.

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Here, the jury was charged with the latter two theories. The trial court also

charged the jury that: “The facts presented in this case allow the jury to find either

that (1) the defendant was the driver or (2) that the defendant was not the driver.”

The jury convicted the Defendant of DUI and rendered a general verdict. We do

not know upon which theory and upon whose actions as principal the jury relied.4

The jury was given the choice of convicting the Defendant based on his

own conduct or criminal responsibility for Sanchez’ conduct. Ordinarily, the fact

that the other actor was neither charged nor convicted of the crime is not a

defense, and we agree that this charge was not error in the case sub judice.

However, the State could only properly convict the Defendant “on proof of

commission of the offense.” Tenn. Code Ann. § 39-11-407. This case is unlike

a conviction where an offense has been proved to have been committed with

multiple actors where the identity of the actual perpetrator is unclear. See State

v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995). In Williams, the

victim was raped by one man when two others were present and participating and

the victim could not identify the actual perpetrator. There, the jury was properly

charged with criminal responsibility. Id. at 251, 257. 

Here, in order to convict the Defendant, it was possible for the State to

prove that either the Defendant or Sanchez was driving. The court could then

charge the jury with DUI and criminal responsibility and convict the Defendant for
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driving drunk himself or for allowing Sanchez to drive drunk. See Williams v.

State, 352 S.W.2d 230, 209 Tenn. 208 (1961). However, it would have been

necessary to prove that both the Defendant and Sanchez were intoxicated in

order to establish that an offense had indeed been committed for the purpose of

convicting the Defendant based on alternate theories of responsibility. The State

argues that there was sufficient evidence to support a finding that Sanchez was

driving and that he was intoxicated. The State contends that “[a]ll of the

witnesses, including the defendant himself admitted that Mr. Sanchez was

drunk.”

We disagree. To determine the sufficiency of the convicting evidence, the

standard is whether, after reviewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979). After a careful review of the record, we have found little evidence to

support a finding beyond a reasonable doubt that Sanchez was intoxicated.

There is only one statement from one witness, Jennifer Barker, that Sanchez was

“very intoxicated.” Other than that, the witness’ statements were that generally

everyone was drinking. The Defendant stated that Sanchez was drinking, but

would not confirm how much he had to drink or whether he was intoxicated.

There is no testimony regarding Sanchez’ appearance or behavior, no field

sobriety tests were conducted and no blood alcohol level was taken. Therefore,

we are compelled to conclude that the evidence was insufficient to support a

conviction based on Sanchez’ driving while intoxicated. More proof of intoxication

than that which was offered in the case at bar is necessary to uphold a conviction

for DUI. See William s v. State, 352 S.W .2d 230, 209 Tenn. 208 (1961); Hopson
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v. State, 299 S.W .2d 11, 201 Tenn. 337 (1957); State v. Nunnery, 875 S.W.2d

681 (Tenn. Crim. App. 1993); State v. Vasser, 870 S.W.2d 543 (Tenn. Crim. App.

1993).

While there is ample evidence that the Defendant himself drove the vehicle

and that he was intoxicated, the jury rendered a general verdict, not specifying

upon which theory they relied to convict. As a result, the jury might have

convicted the Defendant based on insufficient evidence of Sanchez’ intoxication,

and thus, we cannot conclude that instructing the jury on criminal responsibility

was harmless error. Yet, the insufficiency of the evidence merely highlights the

problem of instructing the jury on criminal responsibility without making it clear

that the jury was to agree unanimously that either the Defendant or Sanchez was

driving and that the driver was intoxicated. Even if the evidence was legally

sufficient to support a conviction based on Sanchez’ intoxication, it would be

impossible to assure that the conviction was the result of a unanimous jury

verdict.

A defendant has a fundamental constitutional right to a unanimous verdict

before a conviction for a criminal offense m ay be imposed. State v. Shelton, 851

S.W.2d 134, 134 (Tenn. 1993); State v. Brown, 823 S.W.2d 576, 583 (Tenn.

Crim. App.1991). The unanimity of a verdict is required so that the jury's verdict

may not be a matter of choice between offenses in which some jurors convict of

one offense and others of another offense, all within the same count. Tidwell v.

State, 922 S.W.2d 497, 500 (Tenn. 1996) Protection of this right often requires

"special precautions [by the court] to ensure that the jury deliberates over the

particular charged offense, instead of creating a 'patchwork verdict' based on
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different offenses in evidence." Shelton, 851 S.W.2d at 134. Where there is

evidence of multiple offenses, the precaution is the doctrine of election, which

requires the state to elect and identify at the end of its case-in-chief the exact

offense for which it seeks conviction. Id.; Burlison v. State, 501 S.W.2d 801, 804

(Tenn.1973). Where there is technically one offense, but evidence of multiple

acts which would constitute the offense, a defendant is still entitled to the

protection of unanimity. State v. Forbes, 918 S.W.2d 431, 445-46 (Tenn. Crim.

App. 1995)

[I]n cases involving evidence which shows a real potential that a

conviction may occur as a result of different jurors concluding that the

defendant committed different acts, each of which separately showing

the commission of an offense, the trial court must augment the general

unanimity instruction to insure that the jury understands its duty to

agree unanimously to a particular set of facts. The assessment of this

potential would involve consideration of the allegations made and the

statutory offense charged, as well as the actual evidence presented. 

Brown, 823 S.W.2d at 583 (citing United States v. Gipson, 553 F.2d 453 (5th

Cir.1977) and United States v. Beros, 833 F.2d 455 (3rd Cir.1987)).

In the case at bar, the trial court charged that “The facts presented in this

case allow the jury to find either that (1) the defendant was the driver or (2) that

the defendant was not the driver.” Also, the jury was charged that they were

required to reach a unanimous verdict. However, we do not believe that this

instruction effectively communicated to the jury that they were to unanimously

agree upon the facts constituting the offense, specifically, to unanimously agree

whether the Defendant was or was not driving the Bronco. This leaves the

possibility that part of the jury could have convicted the Defendant for driving

himself, and the others could have concluded that he did not drive. The jury did
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not indicate upon which theory and set of facts it convicted the Defendant. It is

this potential for confusion that invades the Defendant’s constitutional rights.

Furthermore, this problem is compounded by the fact that the jury may have

indeed compiled a “patchwork verdict” and convicted him without sufficient

evidence of an offense. We hold that it was error for the trial court to charge

criminal responsibility for the conduct of another without clearly communicating

to the jury the need for a unanimous verdict on the facts.

Therefore, we must reverse the judgment of the trial court and remand for

a new trial.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

GARY R. WADE, JUDGE

___________________________________

CURWOOD WITT, JUDGE