# FILED June 26, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE APRIL SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9605- CC-00227 ) Appellee, ) ) ) HUMPHREYS CO UNTY VS. ) ) HON. ROBERT E.BURCH JAMES R. LEMACKS, ) JUDGE ) Appe llant. ) (DUI)

ON APPEA L FROM THE JUDGMENT OF THE CIRCUIT COURT OF HUMPHREYS C OUNTY
FOR THE APPELLANT : FOR THE APPELLEE : J.P. BRADLEY JOHN KNOX WALKUP 110 West Main Street Attorney Generaland Reporter Wa verly, TN 37185 JANIS L. TURNER Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243 DAN ALSOBROOKS Distri ct Attorney General GEORGE SEXT ON Assistant Distri ct Attorney General Humphreys County Courthouse Room 206 Wa verly, TN 37185
OPINION FILED ________________________ REVERSED AND REMANDED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defen dant

appeal s as of

rig ht pu rsua nt to Ru le 3 of th e Tennessee Rules of Appellate Pro cedure. He was convicted by a Hum phreys Co unty jury of drivi ng while i ntoxicated and sentenced to 11 months and 29 days, suspended exceptfor 30 days with the remainder to b e serve d on p robatio n. His d river’s license was sus pended for one year an d he w as ord ered to attend DUI s choo l. He a ppeals his conviction raising two issues for review: (1) That t he trialcou r t erred in chargin g crimina l respons ibility when the Defen dant wa s not fo rmally indicted on this char

ge; and (2) t hat the trial court erred in c hargin g criminal respon sibility when the other par ty involved was nevercharged with any offense. Although not precis ely on eit her of the i ssues raised, we reverse and r emand for
a new trial.

The Defendant and three other indivi duals, Sanchez, Duncan, and Lucas planned to attend a party on O ctober 3 0, 1993 . The fou r were so ldiers at Ft. Ca mp bell Army Po st near Clarksville, Te nnessee and they drove to Wa verly, Tennessee for the par ty. The Defendant

drove the ot he rs in h is vehic le, a tan Ford Bronco. The party was being h eld at Rosie Matt hews ’ (a.k. a. Rose Bramlett’s) house, who was Sanchez’ girlfriend. The four went to the party and to P ipp in’s, a bar in Waverly. They returned t o the house in t he early morni ng hours of October 31 to continue the party. All of t hem had been drinking beer thatnig ht, alth ough Luc as testified that she stop ped drinking b efore the others because the Defendant be gan acting strangely and s he did not kno w him very-3-

well. After t hey returnedto the house, Sanchez and his gir lfri end had a fight and he wanted to leave the party.

It is at this p oint in the eveningwhen the test imony of the witnesses at t he trialconflicts reg arding w ho was driving the B ronco. T he State presen te d the followi ng evidenc e. The fo ur left the party and proceeded down Clydeton Road. It is undisputed t hat Duncan was in t he left r ear passenger seat

and that Lucas
was in the ri ght rear passeng er seat. Less than a mile from the hous e, the vehicle left the r

oadway on the right side and tr aveled 285 feet in a ditch before it came to rest at

an embankment. Lucas testified at trial that the Defendant was drivi ng t he Bronco. She stated that she of fered to drive because she was relative ly sober, b ut that the D efenda nt refuse d. She testif ied that the Defendant started i n reverse wi th the emergency br ake stil l on, but then took the brak e off and procee ded do wn the ro ad. Soo n thereafter, the veh icle left the roadway. Lucas testified that, afte r the wr eck, S anch ez op ened the drive r’s side door f rom the outsid e and unloc ked th e Def enda nt’s se atbelt. T he De fenda nt fell dia gona lly into the passenger

seat because the v

ehicle was at

an angle. Lucas hear d two thumps and it appeared that the Defendant’s hea d was cut and bleedi ng. Sanchez explain ed tha t the D efend ant hit h is hea d on th e wind shie ld and the d ashboa rd after hi s seatbelt was removed. Another vehicle p ulled up and Sanchez got a ri de back to the houseto get hel p.

Tennessee State Troop er Mike S mothe rs was d ispatche d to the accident scene, alo ng with a n amb ula nce. Sanc hez had a bump on the head and Lucas had a back injur

y and had to be ext racted fr om the vehicl e. The Defendant was being treated i n the back of the ambulance when Trooper Smothers interviewed-4-

him. He testif ied that t he Defendant was initially uncooperative an d would no t answ er his questions. He appeared intoxi cate d and was arg uing wit h theEMT perso nnel. Lucas had state d that the Defendant was driving and the t rooper confr onted him. Trooper Smothers asked whether he was driving, and the Defendant admitted that he wasdrivi ng and that he j ust missed the c urve and ran off the road. The Defe ndant was taken to a hospitaland consented to a bl ood alcoh ol test, re sulting in a .20 % blo od alc ohol le vel.
TrooperSmothers testified r egarding the head injuri es r eceived by t he Defendant and Sanchez as they cor responde d to the c rack in the veh icle’s passengerside wind shie ld. He stated that Sa nche z cou ld have hit the w indsh ield without receivi ng cuts because of th e safety gl ass. He also testifi ed that the Defe ndan t’s cuts on the rightsi de of his h ead co uld poss ibly be attribu ted to hitti ng the w indshield if his head was turned to the l eft, but were not consi stent with a passenger faci ng forward because the cuts wou ld be on the front of the head.

The Defendant called Jennifer Barker, a woman who was also at the party, to testif y that she s aw Sanche z, not theDefendant, get into the driver’ s seat of the Bronco and drive away. She stated th at everyone h ad been drinkingand that Sanchez “was very i ntoxicated.” Sanchez had aproblem backing upand “spun gra vel” when he pu lled on to the ro ad. Sh e testifie d that h e retur ned s hortly , “saying t hat he’d h ad a wre ck and that he tho ught he ’d killed one of them .” Howeve r, Barker also sa id that Sanchez told her t hat the Defendant was driving and that it thre w him (San chez ) out the pass enge r sid e window and threw the Defen dant into th e pass enger s eat.1 Tenn. Code Ann. § 55-10-401. 2 Tenn. Code A nn. § 39-11-402(2),(3). -5- The Defenda nt testif ied that Sanche z was drivi ng the vehicl e prior to the acciden t. After th e wrec k, he s aw Sa nche z at the driver’s sid e window saying “we got in a wrec k” and that h e would get hel p. The Defendant testifi ed that he felt blood on his head and passed out again on the dashbo ard. He w as pulled out of the truck through t he driver’s side becaus e the passeng er door was obstructedby the em bankm ent. He stated that Sanchez was drinkingbut that he could n’t answe r whethe r Sanch ez was intoxicated and ho w muc h he’d ha d to drink.

The Defendantwa s indicte d in Hu mph reys C ounty for veh icular a ssau lt and drivi ng while i ntoxicated. Sanchez was not prosecuted for any crime. The jury found the Defendant gui lty of drivi ng while i ntoxicated. 1

In his first

issue, t he Defendant argues t hat the court erred by char

ging the jury with criminal r

esponsibilit

y because it was not formally charged in t he indictme nt. After t he conclusion of the proof i n this case, the State requested that the jury be char

ged on crim inal respo nsibility 2 based on the proof at tri al suggesting t hat Sanchez may have been t he driver of the vehi cle.

An indict ment orpresentmentmust provide notice of t he offense char ged,
an adeq uate basis for the entr y of a proper

judgment, and sui table protection against double jeopard y. State v. Tr usty , 919 S.W .2d 305, 310 (Tenn. 199 6); State v. Byrd , 820 S.W .2d 739 , 741 (T enn. 19 91); State v. Lindsay , 637 S.W.2d 886, 890 (T enn. C rim. App .1982). T he indictm ent “mu st state the facts in3 W e note tha t the Defe ndant w as also c harged with vehicu lar assa ult and wa s acqu itted of that offense. -6- ordinary and concise l anguage in a manner that would enable a per son of
common understandin g to knowwhat is inte nded, a nd with a d egree o f certainty which would ena ble the cour t upon convic

tion, to pronounce the pr oper judgmen t.” Wa rden v. Sta te , 214 Ten n. 391, 381 S .W.2d 244, 245 (19 64).

The indict ment in the case at bar charged the Defendant with driv ing wh ile intoxi cated, requiri ng that the followi ng elements be proved: (1) That t he Defendant was dri ving or in co ntrol of a motor vehicl e; (2) t hat the vehi cle was driven on a public r

oad; and (3) t hat the Defendant was under the in fluence of an intoxicant. Initi ally, we note that criminal re spons ibility for the cond uct of anot her is not a statuto ry offe nse, but rat her a legal theory of criminal liabi lity

by which a defendantmay be convictedfor an offen se when th ere are mu ltiple actors involved. See Tenn . Code Ann. § 3 9-11-40 2.

The State decided that cri minal responsibili ty was r aised by the proof as
a theory of

liabi lity based on the Defendant ’s posit ion that h e was not the dr iver of the vehicl e and the State r equested that

an instruc

tion be given to that effec t. We do not beli eve that criminal res ponsibil ity must hav e been included i n the indictme nt. The indictment gave the Defendant

notice of

the offens e charged and
an adequate basis f or the en try of a proper judgment, and also provi ded protecti on against doub le jeopardy. The Defendant was only charged with and at riskof being conv icted fo r DUI. 3 He wa s ap pri sed of t he el ement s of thecri me against which he was to defend and for whic h the tri al court en tered a judgm ent. Although we do not know upon what t heory the j ury based i ts verdict , the-7-

D efendantcan not

be c harged w it h anothe r DUI offensebas ed on that sa me incident. T hus, he is not at risk fo r double jeopard y.

We do not beli eve that our law req uires c rim inal resp onsibil ity for the conduct of anothe r to be cha rged in the indictme nt. In this case, the State had no notice of the d efense that S anchez m ay have bee n the driver. Because the evidence at trial rais ed the issue, it was not improper to request t he charge atthe conclus ion of the p roof.

In his second is sue, the Defendant contends that

the t rial cour

t erred by charging the jury on criminal res ponsibility when the other per son was never charged with theoffense and no pr oof was presented at tri al regardi ng his degree of intoxication . We first note that t he fact th at a party to an offense has not been charged or con victed is not a def ense. However, we conclude that charging criminal responsibility for the cond uct of another led to error i n the case sub judice for anoth er related reason .
One i s crimina lly respons ible as a p arty to an o ffense “if the off ense i s committed by the person’ s own conduct, by the conduct of

another for

which the perso n is criminally respons ible, or by both.” Ten n. Code A nn. § 39-11-4 01
. Furthermore, the legis lature h as pro vided th at a de fenda nt ma y be crim inally respo nsib le bas ed on the conduct of another “on pr

oof of commission of the offense”and that the defendant was a party. Tenn . Code Ann. § 3 9-11-40 7. It is not a defen se tha t “[t]he pe rson fo r whos e con duct th e defe ndan t is crim inally respo nsible has been acquitted, has not been pr osecuted or conv icted, h as been convictedof a differe nt offen se or d ifferent ty pe or c lass of offens e, or is immune-8-

from prosecuti on.” Tenn. Code Ann. § 39- 11-407(2). The Se ntencing Commission Com men ts to se ction 4 07 sta te the fo ll ow ing poli cy determinat ion for offenses ba sed on crim inal responsibility for the con duct of anothe r:

This section ref lects a policy determination that, in a case involv ing mul ti ple offenders, a c onviction should be sustained where there is sufficient

evidence to sup port it, re gardle ss of w hethe r there is a failur e of pr oof in ano th er case involving other people. Thus, the defendantmay be co nvicted whethe r t he ot her parties to t he offense are convicted, ac quitted, or incapab le of criminal respo nsibility.

Thus, upon proof th at an o ffense has b een c omm itted, with multip le actors, even if another person was the princi pal, a defendant may be convic ted for the conduct of the other based on one of three t heories:

(1) Acting wit h the culpabi lity required for theoffense, the person causes or aids an innocen t or irrespon sible pers on to eng age in conduct prohi bited by t he defini tion of t he offense; (2) Acting wit h intent t o promote or

assist t he commission of t he offense, or to benefit in the proceeds or results of the offense, t he person solicits, directs , aids, or atte mpts to aid anoth er perso n to commit the offense; or (3) Havin g a duty impos ed by law or volunta rily underta ken to preventcommission of t he offense a nd a cting w ith inten t to ben efit in the proceeds or res ults of the offense, or to promote or ass ist its commission, the person fails to make a reaso nable effort to prevent commission of the offense.
Tenn. Code Ann. § 39-11-402; see also State v . Wil li ams , 920 S.W.2d 247, 257- 58 (Ten n. C ri m. App. 19 95); State v. Gennoe , 85 1 S. W.2d 8 33, 836 (Ten n. C ri m. App. 19 92); State v . Brown , 756 S.W .2d 700, 703 (Tenn. Crim . App. 1988 ).4 We note that the Defendant has included in his brief what is ostensibly intended to be an affidavi t from the jur

y foreper

son describi ng their deliber ations 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 nothi ng in the t echnical r

ecord documenting the hearing on the motion for new trial no r the a ffida vit. Se con d, ad mittin g doc um enta tion o f a jur y’s delib eratio ns is inadmissibl e unless under speci fic cir cumstances pursuant to Rul e 606(b) of t he Tennessee Rules o f Evidenc e. Ther efore, we do not co nsider this affidavit. -9- Here, the jury

was charged with the latter two theories. The trial court al so charged the jury

that: “ The facts presented i n this case al low the ju ry to f ind eith er that(1) the defendant was the dr iver or (2) that the defendant wasnot the drive r.” The jury conv icted th e Defendant of DUI and rendered a general ver dict. We do not know upon which theor y and upon whose acti ons as princi pal the j ury reli ed. 4

The jury was given the choice of convic ting the D efe ndan t base d on h is
own conduct or cr iminal res ponsibil ity for Sanchez’ conduct. Ordinarily, thefact that the other ac tor was n either cha rged no r convicted of the crim e is not a defense, and we agree tha t this charge was not error in the case sub judice

. Howeve r, the State could only proper ly convi ct the Defendant “on proof of commission of the offens e.” Tenn. Code Ann. § 39-11-407. This case is unlike
a conviction where a n offense has be en prove d to have been c omm itte d wit h multip le actors w here the identity of the actual pe rpetrator is u nclear. See State
v. Williams , 920 S. W.2d 247, 2 58 (Tenn. Crim. Ap p. 1995 ). In Williams , the victim was raped by one man when two others were pr esent and parti cipati ng and the victim c ould n ot iden tify the ac tual pe rpetra tor. Th ere, the jury wa s prop erly charge d with crim inal respo nsibility. Id. at 251, 25 7.
Here, in order to convict the Defendant, it was pos sible f or the Sta te to prove that eit her the Defendant or Sanchez was dri ving. The cour t could t hen charge the jury wi th DUI and criminal responsibi lity and convict

the Defendant for-10-

drivi ng drunk himself or for al lowing Sanchezto dri ve drunk
. See Williams v. State , 352 S.W.2d 230, 209 Tenn. 208 (19 61). Howe ve r, it would have been
necessa ry

to prov e that b oth the Defe ndan t and S anch ez we re intox icated in orderto establish that an off ense had indeed been committed for the purpose of convicti ng the Defendant basedon alterna te theories of respo nsibility. The State argues that there w as sufficien t evidence to support a fi nding that Sanchez was drivi ng and th a t he was intoxicated. The State contends t hat “[a] ll of the witnesses, including the defen dant him self adm itt ed that Mr. Sanche z was drunk.”

We disagree. To determine the suffi ciency of the convicti ng evidence, t he standard is whether, after reviewing the evi dence in t he light m ost favora ble to the prosecuti on, any rat ional trier of fact coul d have found the esse ntial elem ents of the crime beyond a reaso nable d oubt. Jack son v. V irginia , 443 U.S. 307, 319 (1979). After a c areful re view of th e reco rd, we h ave fou nd lit tle evi denc e to support a findin g beyond a reasonabl e doubt that Sanchez was intoxi cated. There is only one statement from one wi tness, Jenni fer Barker, that Sanchezwas “very into xicated .” Othe r than th at, the w itness ’ statem ents w ere tha t gene rally everyone was drinking. T he Defen dant stated tha t Sanchez was dri nking, but would not confirm how m uch he had to dr ink or wh eth er he w as in toxicated. There i s no tes timon y rega rding S anch ez’ ap peara nce o r beha vior, no field sobriety tests were conducted and no blood alcohollevel was t aken. Therefore, we are com pelled to c onclud e that the e vidence was insu ff ici ent to sup port a convicti on based on Sanchez’ driv ing whil e intoxi cated. More pr oof of int oxicati on than that whic h was offered i n the case at bar is necessary to uphold a convi ction forDUI. See William s v. State , 352 S.W .2d 230 , 209 Te nn. 208 (1961); Hopson-11-

v. State , 299 S.W .2d 11, 2 01 Tenn . 337 (19 57); State v. Nunn ery , 875 S.W.2d 681 (Tenn . Crim. A pp. 199 3); State v. Vasser , 870 S.W.2d 543 (Tenn. Cri m. App. 1993).

W hile there is amp le eviden ce tha t the D efend ant him self drove the veh icle
a nd that he was intoxi cated, the jury ren dered a general v erdict, not specif

ying upon which theory the y relied to convict. As a res ult, the jury might have convictedthe Defendant based on insuff icient evidence of Sanchez’ intoxicati on, and thus, we cannot

conclude that

instructing the jury on crim inal respo nsibility
was harmle ss error. Yet, the insuffi ciency of the evidence merely highli ghts the problem of inst ructing t he jury on criminal res ponsibil ity wi thout making i t clear thatthe jury was to agree unani mously that eitherthe Defendant or Sanchez was drivi ng and that the driver w as intoxi cated . Even if the evid ence was le gally suffic ientto support a convicti on based on S anchez’ intoxicati on, it woul d be impo ssible to assure t hat the convi ction was t he result o f a unanimo us jury verdict.

A defendant hasa funda menta l constitution al right to a unanimous verdict before a convict ion for a c riminal offense m ay be im posed
. State v. Shelton , 851 S.W.2d 134, 13 4 (Ten n. 1993 ); Statev. Brown , 823 S.W.2d 576, 583 (Tenn. Cri m. App.1991). The unani mity of a verdict is required so that the j ury's verdict may not be a matter of choice between of

fenses in whi ch some jurors conv ict of
one offense and ot hers of another offense, a ll within the sa me co unt. Tidw ell v. State , 922 S.W .2d 49 7, 500 (Ten n. 199 6) Pro tection of this right of ten requir

es "special precautions [by the court ] to ensure that t he jury deliberates o v er the particul ar charge d offense , instead o f creating a 'patc hwork verdict ' based on-12-

differ ent offense s in evidenc e." Shelton , 851 S .W .2d at 1 34. W here th ere is evidence of multiple off enses, the precaution is t he doctrine of elect ion, which
re quires the state to elect and identify at the end of its ca se-in-ch ief the exac t offense for which it seeks conviction
. Id. ; Burlison v. State , 501 S.W.2d 801, 804 (Tenn.19 73). Where there is tec hnic ally one offens e, but e videnc e of m ultiple acts which w ould con stitute the o ffense, a d efenda nt is stil l entit led to the protecti on of unanim ity. State v. Forbes , 91 8 S. W.2d 4 31, 445-46 (Tenn . Cr im. App. 1995)
[I]n cases in volving evid ence w hich sho ws a rea l pote n tial that a convicti on may o ccur a s a res ult of differ ent juror s concluding t hat the defendantcommitted dif ferent act

s, each of

which separately showing the commission of an offense, the trial court must augment the general unanim ity instruction to insure th at the jury un dersta nds i ts duty to agree unan imou sly to a p articula r set of fa cts. Th e ass essm ent of th is potentialwould involve considerat ion of theallegat ions made and the statutory of f ense c harged , as well as the actua l evidence presen ted.
Brown , 823 S.W.2d at 583 (cit ing United States v . Gi pson , 553 F.2 d 453 (5 th Cir.1977) and United States v. Beros , 833 F.2d 45 5 (3rd Cir.1987 )).

In the case at bar , the trialcourt chargedthat “T he fac ts pres ented in this
case allow thejury to find ei ther that (1) thedefendant was t he driver or (2) t hat the defendan t was not the driver.” Also , the jury was charg ed that they w e re required to reach a unan imou s verdic t. How ever, w e do n ot belie ve that th is ins tructi on effectively communicated to the jury that t hey were to unanimousl y agree upon th e facts constituting the offens e, specifically, to unanimously agree whetherthe Defendant was or was not driving the Br onco. This l eaves the possi bility that part of the jury could h ave convicted th e Defend ant for drivin g himse lf, and the others could have c onclu ded th at he d id not d rive. Th e jury did-13-

not indica te upo n whic h theo ry and set of fa cts it convictedthe De fenda nt. It is this potentialfor confus ion that i nvades the Def endan t’ s constituti onal rights. Furthermore, thi s probl em i s co mp ounded by the fact that the jury ma y have indeed com piled a “patch work v erdict” a nd co nvicted him w it h out suffi cient evidence of an offen se. W e hold tha t it was error fo r the trial cou rt to charge criminal responsibi lity for theconduct of anot her without c learly communicating to the jury t he need for a unanimous verdict on the facts.
Therefore, we must reverse t he judgment of t he trialcourt and remand for
a new trial.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ GARY R. WADE, JUDGE

___________________________________ CURWOOD WITT, JU DGE