        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE            FILED
                        APRIL SESSION, 1997          June 26, 1997

                                                 Cecil W. Crowson
STATE OF TENNESSEE,        )                   Appellate Court Clerk
                                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 APPEAL 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 General and Reporter
Wa verly, 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
                                Wa verly, TN 37185



OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE
                                OPINION

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

Rules of Appellate Pro cedure. He was convicted by a Hum phreys Co unty 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 p robatio n. His d river’s

license was suspended for one year an d he w as ord ered to attend DUI s choo l.

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

erred in chargin g crimina l respons ibility when the Defen dant was not fo rmally

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

respon sibility 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 3 0, 1993 . The fou r were so ldiers at Ft.

Campbell Army Po st near Clarksville, Te nnessee and they drove to Wa verly,

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 Luc as testified that she stop ped drinking b efore the others

because the Defendant began acting strangely and s he did not kno w him very




                                        -2-
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 p oint in the evening when the testimony of the witnesses at the

trial conflicts reg arding w ho was driving the B ronco. T he State presen ted the

following evidenc e. The fo ur 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

relative ly sober, b ut that the D efenda nt refuse d. She testified that the Defendant

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

and procee ded do wn the ro ad. Soon 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 from

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 vehicle was at an angle. Lucas heard two

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

Sanchez explain ed tha t the D efend ant hit h is hea d on th e wind shield 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 Troop er Mike S mothe rs was d ispatche d 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

                                            -3-
him. He testified that the Defendant was initially uncooperative and would not

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

perso nnel. Lucas had state d 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

alcoh ol test, re sulting in a .20 % blo od alc ohol le vel.



        Trooper Smothers testified regarding the head injuries received by the

Defendant and Sanchez as they corresponded to the c rack in the veh icle’s

passenger side windshield. He stated that Sa nche z cou ld have hit the w indsh ield

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

Defe ndan t’s cuts on the right side of his h ead co uld poss ibly be attribu ted 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 pu lled on to the ro ad. Sh e testifie d that h e retur ned s hortly,

“saying that he’d h ad a wre ck and that he tho ught he ’d killed one of them .”

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

and that it thre w him (San chez ) out the pass enge r side window and threw the

Defen dant into th e pass enger s eat.

                                            -4-
          The Defendant testified that Sanchez was driving the vehicle prior to the

acciden t. After th e wrec k, he s aw Sa nche z 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 em bankm ent. He stated that Sanchez was drinking but 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 Defendant was indicte d in Hu mph reys C ounty for veh icular a ssau lt

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

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

the jury be charged on crim inal respo nsibility 2 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 jeopard y. State v. Trusty, 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 in


1
    Tenn. Code Ann. § 55-10-401.

2
    Tenn. Code A nn. § 39-11-402(2),(3).

                                           -5-
ordinary and concise language in a manner that would enable a person of

common understanding to know what is inte nded, a nd with a d egree o f certainty

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

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



        The indictment in the case at bar charged the Defendant with driv ing wh ile

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 re spons ibility 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 th ere are mu ltiple actors

involved. See Tenn . Code Ann. § 3 9-11-40 2.



        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 effec t.

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

indictme nt. 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 doub le 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 judgm ent.

Although we do not know upon what theory the jury based its verdict, the



3
  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-
Defendant cannot be charged with another DUI offense based on that same

incident. T hus, he is not at risk fo r double jeopard y.



       W e do not believe that our law requires c riminal responsibility 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 the charge at the

conclus ion of the p roof.



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

charging the jury on criminal res ponsibility 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 con victed is not a defense. However, we conclude that charging

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

judice for anoth er related reason .



       One is crimina lly respons ible as a p arty to an o ffense “if the offense is

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

person is criminally respons ible, or by both.” Ten n. Code A nn. § 39-11-4 01.

Furthermore, the legislature h as pro vided th at a de fenda nt ma y be crim inally

respo nsible based on the conduct of another “on proof 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 prosecuted or convicted, has been

convicted of a differe nt offen se or d ifferent ty pe or c lass of offens e, or is immune

                                            -7-
from prosecution.”      Tenn. Code Ann. § 39-11-407(2).              The Sentencing

Commission Com men ts to se ction 4 07 sta te the fo llowing policy determination

for offenses ba sed on crim inal responsibility for the con duct of anothe r:



             This section reflects a policy determination that, in a case
      involving multiple 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 failure of proof in ano ther case involving other people. Thus, the
      defendant may be co nvicted whethe r the other parties to the 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 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 innocen t or irrespon sible pers on 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 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
      prevent commission of the offense and acting w ith inten t to ben efit 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. 19 95); State v. Gennoe, 851 S.W.2d 833, 836 (Tenn. Crim.

App. 19 92); State v. Brown, 756 S.W .2d 700, 703 (Tenn. Crim . App. 1988 ).




                                          -8-
         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 drive r.”

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 Defendan t base d on h is

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

that the other ac tor was n either cha rged no r convicted of the crim e is not a

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

Howeve r, 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 a n offense has be en prove d to have been c omm itted with

multip le actors w here the identity of the actual pe rpetrator is u nclear. 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 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 possible for the Sta te 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



4
 We 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 ffida vit. Se con d, ad mittin g doc um enta tion o f 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.

                                                        -9-
driving drunk himself or for allowing Sanchez to drive drunk . See Williams v.

State, 352 S.W.2d 230, 209 Tenn. 208 (1961). Howe ver, 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

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

convicting the Defendant based on alterna te theories of respo nsibility. The State

argues that there w as sufficien t 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 defen dant him self adm itted that Mr. Sanchez was

drunk.”



       W e disagree. To determine the sufficiency of the convicting evidence, the

standard is whether, after reviewing the evidence in the light m ost favora ble to

the prosecution, any rational trier of fact could 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 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 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 drinking, but

would not confirm how m uch he had to dr ink or wh ether he w as intoxicated.

There is 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 alcohol level was taken. Therefore,

we are com pelled to c onclud e that the e vidence was insu fficient to sup port 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 Te nn. 208 (1961); Hopson

                                           -10-
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. Crim. App.

1993).



         W hile there is amp le eviden ce tha t the D efend ant him self drove the veh icle

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

upon which theory the y relied to convict.          As a res ult, the jury might have

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

and thus, we cannot conclude that instructing the jury on crim inal respo nsibility

was harmle ss 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 evid ence was le gally

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

impo ssible to assure that the conviction was the result of a unanimo us jury

verdict.



         A defendant has a funda menta l constitution al right to a unanimous verdict

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

S.W.2d 134, 13 4 (Ten n. 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, 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 often requires

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

particular charge d offense , instead o f creating a 'patchwork verdict' based on

                                            -11-
different offenses in evidenc e." Shelton, 851 S .W .2d at 1 34.       W here th ere 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 ca se-in-ch ief the exact

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

(Tenn.19 73). Where there is technically one offens e, but e videnc e of m ultiple

acts which w ould con stitute the o ffense, a d efenda nt is still entitled to the

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

App. 1995)



      [I]n cases in volving evid ence w hich sho ws a rea l potential that a
      conviction may o ccur a s a res ult 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
      unanim ity instruction to insure th at the jury un derstands its duty to
      agree unan imou sly to a p articula r set of fa cts. Th e ass essm ent of th is
      potential would involve consideration of the allegations made and the
      statutory offense c harged , as well as the actua l evidence presen ted.


Brown, 823 S.W.2d at 583 (citing United States v. Gipson, 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 trial court charged that “T he fac ts pres ented in this

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

the defendan t was not the driver.” Also , the jury was charg ed that they were

required to reach a unan imou s verdic t. How ever, w e do n ot belie ve that th is

instruction effectively communicated to the jury that they were to unanimously

agree upon th e facts constituting the offens e, specifically, to unanimously agree

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

possibility that part of the jury could h ave convicted th e Defend ant for driving

himse lf, and the others could have c onclu ded th at he d id not d rive. Th e jury did

                                         -12-
not indica te upo n whic h theo ry and set of fa cts it convicted the De fenda nt. It is

this potential for confusion that invades the Defendan t’s constitutional rights.

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

indeed com piled a “patch work v erdict” a nd co nvicted him w ithout sufficient

evidence of an offen se. W e hold tha t it was error fo r the trial cou rt 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




                                          -13-
