        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                         JUNE SESSION, 1998                 FILED
                                                        August 12, 1998
STATE OF TENNESSEE,        )    C.C.A. NO. 02C01-9711-CR-00425
                           )                           Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
      Appellee,            )
                           )
                           )    SHELBY COUNTY
VS.                        )
                           )    HON. CHRIS CRAFT
GARY PRUDE,                )    JUDGE
                           )
      Appe llant.          )    (DUI - 4th Offense, Reckless Driving)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

ROBERT A. WAMPLER               JOHN KNOX WALKUP
P.O. Box 3410                   Attorney General and Reporter
Memphis, TN 38173-0410
                                PETER M. COUGHLAN
                                Assistant Attorney General
                                425 5th Avenu e North
                                Nashville, TN 37243

                                JOHN W. PIEROTTI
                                District Attorney General

                                DAN BYER
                                Assistant District Attorney General
                                Criminal Justice Complex, Suite 301
                                201 Poplar Street
                                Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

      This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appe llate Procedure . The Defe ndant was convicted on a Shelby Co unty jury

verdict of driving while under the influence of an intoxicant (fourth offense) and

reckless driving.   On this appeal he argues (1) that the trial judge erred by

charging the jury regarding criminal responsibility for the conduct of another, and

(2) that under the circumstances of this case, the inclusion of this jury instruction

violated the Defendant’s constitutional right to a unanimous verdict. We find no

reversible error and affirm the ju dgme nt of the trial co urt.



       On February 11, 1996, the Defendant was in possession of a van provided

by his em ployer . At app roxim ately 2:0 0 a.m ., the D efend ant, alo ng with a ma le

and a female companion, were proceeding in the van along a street in Mem phis

when the van struck a p ickup truc k parke d in the stre et, traveled across a yard,

and then went up on the fron t porch o f a house and ram med in to the hou se itself.

Mem phis Police Officer Larry Skelton was the first officer to arrive on the scene.

Ambulance person nel were already p resent. When the police officer arrived, the

Defendant had been placed in the ambulance.             Officer Skelton entered the

ambulance where he detected a strong odor of intoxicants about the Defendant

and noticed that the Defen dant’s speec h was slurred and his eyes w ere watery.

The officer testified that the Defendant told him he was driving the van and had

hit a bump which caused him to lose control of the van. The officer stated that

beer cans were scattered around the inside of the van and in the yard. Based on

his observations of the Defendant and the statements the Defendant made, the



                                          -2-
officer determined that the Defendant had been the driver of the van and that the

Defendant was intoxicated.



      Mem phis Fire De partm ent Paramedic Harry Perry stated that when he

arrived at the scene, a Shelby County Sheriff’s Deputy car was already present

and some people were “milling” near the van.          Mr. Perry testified that he

examined the Defendant, who had a lip laceration and some blood on his face.

He said he detected an odor of intoxicants about the Defendant and noted that

he staggered somewhat and that his “gait” and demeanor indicated “somewhat

imbala nce.”   Mr. Perry said that the Defendant advised him that he (the

Defen dant) had been driving the van. In addition, Mr. Perry heard the Defendant

advise a policeman that he (the Defendant) had been driving, and he heard the

Defendant apologize to the female com panion for “driving an d having this

acciden t.” On cross examination, Mr. Perry emphasized that he was certain the

Defendant told him th at he ha d been driving the va n. Finally, he testified the

Defen dant’s sp eech w as slurred .



      The owner of the pickup truck and house struck by the van testified that

although he was no t at home w hen the wre ck occurred , he arrived shortly

thereafter. He observed all three occupants of the van and claimed that they

were all “drunk” — they we re “unsteady, speech was slurred and smelling real

strong [of alcohol].” He also said that the Defendant told him that he (the

Defen dant) had been driving. Although this witness testified that the driver of the

van had been placed in the police squad car, other evidence showed that the

Defendant had been placed in the ambulance and the male passenger had been

placed in the sq uad car.

                                        -3-
          A Shelby County deputy sheriff testified that when he arrived at the scene,

only the occu pants o f the van a nd the o wners o f the house were present. He

stated that he responded to the call because he was close to th e scen e. He sa id

that he asked who had been driving and the Defendant said that he (the

Defen dant) had been. He stated that all three van oc cupa nts sm elled o f alcoh ol.

When he later advised the Defendant of his “implied consent rights,” the

Defendant advise d him that he had n ot, in fact, been driving. The Defendant then

refused to take a b lood-alco hol test.



          The deputy also stated that prior to talking with the Defendant, the other

male occupant of the van advised him that he (the other occupant) had been

driving. Wh en the dep uty started advising the occupant of his rights under the

implied consent law, the occupant then said “<I’m not going to jail for something

I didn’t do . . . .’” The male occupant then stated that the Defendant had been

driving the van.



          The Defendant offered no proof. The State requested that the judge

instruct the jury concernin g criminal respo nsibility for the conduct of an other. 1

The assistant district attorney stated that the defense contended the State did not

prove sufficie ntly that the Defendant had been driving rather than the other m ale

occupant of the van. The State therefore argued that a charge on criminal

respon sibility was warranted by the evidence. In addition, the State argued the

proof clearly showed that the Defendant had legal possession of and

respon sibility for the van and that if the other individual was operating the van, he




1
    Tenn. Code Ann. § 39-11-402(2).

                                          -4-
did so while in toxicated a nd with the Defe ndant’s p ermiss ion. The judge agreed

to charge the jury on criminal re spons ibility over the ob jection of the Defen dant.

Although the judge ga ve a standard jury instruction conce rning the need for a

unanimous verdict, no special instruction was given on the need for a unanimous

verdict on either criminal respon sibility for the conduct of ano ther or actual

com miss ion of the offenses. The jury returned a general verdict of guilty for

driving a motor vehicle while under the influence of an intoxicant and reckless

driving. After hearing additional evidence, the jury found the Defendant guilty of

driving under the influence of an intoxicant, fourth offense.



       The Defendant first argues that the trial judge erred b y charging the jury

concerning criminal responsibility because it was not charged in the indictment

and becau se the S tate did no t give the Defe ndan t notice of this alternate theory

of prosecution. He argues that his due process rights were violated because the

indictment failed to provide him notice that he was being tried for the conduct of

a third party.



       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. T rusty, 919 S.W.2d 305, 310 (Tenn. 1996);

State v. Byrd, 820 S.W.2d 739, 74 1 (Ten n. 1991 ); State v. Lindsay, 637 S.W.2d

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

ordinary and co ncise lan guage . . . 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




                                         -5-
judgm ent.’” Wa rden v. Sta te, 381 S.W.2d 244, 245 (Tenn. 1964). (quoting Tenn.

Code A nn. § 40-180 2 (recodified as a mende d at § 40-13-2 02).



       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 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 m ultiple actors

involved. See Tenn. Code Ann. § 39-11-402. We do not believe that “criminal

responsibility” must have been included in the indictment. Th e indictment g ave

the Defendant notice of the events charged, and an adequate basis for the entry

of a prope r judgm ent, and protection against double jeopardy. Because the

evidence at trial raised the issu e, we be lieve it was a ppropria te for the S tate to

request the charge at the conclusion of the proof, and the trial judge did not

comm it prejudicial e rror in gran ting the req uest.



       The second p art of the Defendant’s issue on appeal is a more troubling

one. The Defendant argues that because the criminal responsibility instruction

was includ ed, it is im poss ible to d eterm ine wh ether th e jury in this case reached

a unanimous verdict conce rning the facts supporting the offense for which he was

convicted. Although the court instructed the jury on the need for a unanimous

verdict, the court did not instruct concerning the jury’s need to render a

unanimous verdict on whether the Defendant was guilty of DU I base d on h is

conduct as the driver of the van or whether the Defendant was guilty of DUI

                                          -6-
based on his crimin ally responsibility for the conduct of another individual. The

Defendant cites Burlison v. State, 501 S.W.2d 801 (Tenn. 1973), for the

proposition that the State should have been required to elect and that the judge

shou ld have“ properly instruct[ed] the jury so that the ver dict of e very juro r would

be united on the one offens e.” Id. at 804.



       The requirement that the State elect, at the close of its case in chief, which

proof it relies upon for a conviction most commonly occurs where the State has

introduced evidence of several instances of sexual misconduct, especially when

the proof presen ted could sup port a finding of more criminal conduct than is set

forth in the indictm ent or indic tments . Jamis on v. State , 94 S.W.2d 675 (Tenn.

1906); Burlison v. State, 501 S.W .2d 801 , 803 (T enn. 19 73); State v. Shelton,

851 S.W .2d 134 , 136 (T enn. 19 93).        W here the re is eviden ce of m ultiple

offenses, particularly involving sexual crimes against small children, the

precaution to ensure jury unanimity is the doctrine of election, which requires the

State to elect and identify at the end of its proof the facts that supported the exact

offense for which it seeks conviction . See State v. Walton, 958 S.W.2d 724, 727

(Tenn. 19 97).



       In a case such as the one at bar, where a defendant is charged with DUI

and the jury is to be c harge d con cernin g the D efend ant’s g uilt bas ed up on his

own conduct and also based on the conduct of another for which he may be

crimin ally responsible, we do not believe the doctrine of election is applicable.

In the case sub judice, the charge arose out of the driving of one automobile at

one particular time. The charges do not involve evidence of multiple acts, each

of which co uld cons titute the offense of DUI. W here the eviden ce could sup port

                                          -7-
such a findin g, we b elieve th e State is entitled to proceed to the jury under

alternate theories of DUI based upon a defendant’s own driving or on the driving

of another for whom the Defendant may be criminally responsible.



       W e do agree with the Defendant, as the cases involving the need for an

election emph asize, tha t the Defe ndant h as a fund amen tal constitutio nal right to

a unanimous verdict before a conviction for a criminal offense may be imposed.

State v. Shelton, 851 S.W.2d 134, 137 (T enn. 19 93); State v. Brown, 823 S.W.2d

576, 583 (T enn. C rim. A pp. 19 91). T he un anim ity of a ve rdict is required so that

the jury 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. Tidwe ll v. State, 922 S.W. 2d 49 7, 500 (Ten n. 199 6). Pro tection of this

right often req uires spe cial “preca utions [by th e court] to ensure that the jury

deliberates over the particular charged offense, instead of creating a ‘patchw ork

verdict’ based on different offenses in evide nce.” Shelt on, 851 S.W.2d at 137

(citing State v. Brown, 823 S.W .2d 576, 583 (Tenn. Crim . App. 1991 )).



       In a case such as the one at bar, the Defendant’s fundamental right to a

unanimous jury verdict requires the S tate to prove to the jury beyond a

reaso nable doubt the facts which constitute the offense. If, for exa mple , six

jurors were convinced beyond a reasonable doubt that the Defendant himself was

driving the van while intoxicated, and the other six jurors were convinced beyond

a reasonable doubt that the Defendant’s male companion was driving the van

while intoxicated, a conviction of the Defendant for DUI would not be based upon

a unanimous jury decision concerning proof of all elements of the offense beyond

a reasonable doubt. The jury’s verdict in that event would not be unanimous.

                                          -8-
       W e must the refore co nclude that it was e rror for the trial court to charge

criminal re spons ibility for the conduct of another without clearly communicating

to the jury the need for a unanimous verdict on the facts. The jury did not

indicate upon which theory and set of facts it con victed the D efenda nt. It is this

potential for confusion that invades a defendant’s constitutional rights because

under these circ umsta nces, a jury cou ld indeed comp ile a “patch work verd ict”

regarding the facts o f the offens e. See State v. James R. Lemacks, C.C.A. No.

01C01-9605-CC-00227, Humphreys County (Tenn. Crim. App., Nashville, June

26, 199 7), perm. to app. granted (Tenn. Ma r. 16, 1998).



       In the case sub judice, however, based upon the evidence presented at

trial, we conclud e that the error of the trial judge in failing to instruct the jury more

clearly of the ne ed for a unan imou s verdic t is harm less be yond a reaso nable

doubt. Wh ile there w as so me s ugge stion fro m the eviden ce tha t the D efend ant’s

male companion had driven the van on the morning in question, because of the

strength of the overwhelming evidence that the Defendant had in fact been

driving, we do n ot believe that there is any reas onable dou bt that the jury

convicted the Defendant based upon the proof that he in fact had been driving

the van.



       The judgment of the trial court is accordingly affirmed.




                                    ____________________________________
                                    DAVID H. WELLES, JUDGE




                                           -9-
CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
JOE G. RILEY, JUDGE




                             -10-
