                                                                                       06/23/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs April 14, 2020

             STATE OF TENNESSEE v. TINA NICHOLE LEWIS

               Appeal from the Circuit Court for Williamson County
                 No. II-180524      James G. Martin, III, Judge
                    ___________________________________

                           No. M2019-01670-CCA-R3-CD
                       ___________________________________


The Defendant, Tina Nichole Lewis, was charged with one count of second degree
murder through the unlawful distribution of fentanyl and amphetamine and one count of
delivery of fentanyl and amphetamine. The trial court granted the Defendant’s motion to
dismiss the charges on the basis that the indictment was duplicitous because it charged a
single count of each offense by listing two Schedule II drugs, fentanyl and amphetamine.
The State appeals the dismissal of the homicide charge. We conclude that the indictment,
which charged one single offense of homicide, was not duplicitous, and we accordingly
reverse the trial court’s dismissal of the charge.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                  Case Remanded

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ALAN E.
GLENN and ROBERT W. WEDEMEYER, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; Kim R. Helper, District Attorney General; and Carlin Hess, Assistant
District Attorney General, for the appellant, State of Tennessee.

Elizabeth A. Russell, Franklin, Tennessee, for the appellee, Tina Nichole Lewis.


                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

       The factual underpinnings of the offenses are not included in the record, but the
indictment returned on August 13, 2018, charged the Defendant with two offenses:
              COUNT 1
              SECOND DEGREE MURDER

              The Grand Jurors for Williamson County, Tennessee, duly
       impaneled and sworn, upon their oath, present that TINA NICHOLE
       LEWIS, heretofore, to-wit, on or about March 17, 2018, before the finding
       of this presentment, in said County and State, did unlawfully distribute
       Schedule II drugs, to-wit: fentanyl and amphetamine, and said
       distribution resulted in the killing of another, to-wit: Jacob Gallardo, and
       said drugs were the proximate cause of the death of the user, in violation of
       Tennessee Code Annotated 39-13-210, a class A felony, and against the
       peace and dignity of the State of Tennessee.

              COUNT 2
              DELIVERY OF SCHEDULE II DRUGS

              The Grand Jurors for Williamson County, Tennessee, duly
       impaneled and sworn, upon their oath, present that TINA NICHOLE
       LEWIS, heretofore, to-wit, on or about March 17, 2018, before the finding
       of this presentment, in said County and State, did unlawfully and
       knowingly deliver controlled substances, to-wit: fentanyl and
       amphetamine, said drugs being classified as controlled substances in
       Schedule II, without any authorization under the law, in violation of
       Tennessee Code Annotated 39-17-417, a class C felony, and against the
       peace and dignity of the State of Tennessee.

(Emphasis added.)

        The Defendant filed a motion to dismiss this indictment, and on August 23, 2019,
the trial court heard argument on the motion. During this hearing, the parties discussed
that the State had sought a superseding indictment in 2019 under subsection (a)(3) of the
statute, making it an offense to kill another “by unlawful distribution or unlawful delivery
or unlawful dispensation of fentanyl or carfentanil, when those substances alone, or in
combination with any substance scheduled as a controlled substance by the Tennessee
Drug Control Act of 1989, … is [sic] the proximate cause of the death of the user.”
T.C.A. § 39-13-210(a)(3) (2018); see 2018 Pub. Acts, ch. 995, § 1, eff. July 1, 2018.
However, the parties agreed that this law had only come into effect after the offense at
issue, and that accordingly, the State could not proceed under this subsection but could
only prosecute the Defendant under the original indictment charging her with “[a] killing
of another that results from the unlawful distribution of any Schedule I or Schedule II
                                           -2-
drug, when the drug is the proximate cause of the death of the user.” T.C.A. § 39-13-
210(a)(2).

       At the hearing, the defense asserted that the indictment was duplicitous because it
listed both fentanyl and amphetamine as the Schedule II drug involved in the offenses
and that under State v. Collier, 567 S.W.2d 165, 166 (Tenn. 1978), the indictment must
charge each drug offense separately. The Defendant argued that because the illegality of
the drug which was the proximate cause of death was an element of the offense, the
indictment was not merely charging alternative theories. The defense asserted the
indictment would lead to an issue with the unanimity of the verdict and argued that the
addition of subsection (a)(3) to the statute indicated that the Legislature did not intend for
subsection (a)(2) to apply to drugs working in combination. See T.C.A. § 39-13-
210(a)(2) (criminalizing “[a] killing of another that results from the unlawful distribution
of any Schedule I or Schedule II drug, when the drug is the proximate cause of the death
of the user”), -210(a)(3) (making it an offense to kill another “by unlawful distribution or
unlawful delivery or unlawful dispensation of fentanyl or carfentanil, when those
substances alone, or in combination with any substance scheduled as a controlled
substance by the Tennessee Drug Control Act of 1989, … is [sic] the proximate cause of
the death of the user”).

       The State asserted that because there was only one homicide, only one crime was
charged. The prosecutor noted that the State was “hamstrung by an autopsy report that
says combination,” presumably referring to the cause of the victim’s death from a
combination of drugs, but the prosecutor agreed that Count 2, charging the Defendant
with delivery of two separate drugs, could be charged as two separate offenses in a
superseding indictment. The State noted in its written response to the motion to dismiss
that the proof at trial would show “that the victim died as a result of a fatal dosage of a
fentanyl and amphetamine mixture, delivered to him by the defendant.”

       The trial court granted the Defendant’s motion to dismiss, observing that the
indictment could cause an issue with jury unanimity because it would not be possible to
know which drug the jury found to be the cause of death and that the State would have to
elect which drug was the proximate cause of the victim’s death. The court further
observed that “the Statute is worded in the singular, not in the plural,” whereas the
indictment charged multiple drugs as causing the death. The court noted that the State
would only be able to salvage the indictment through medical proof that one particular
Schedule II drug caused the death. The trial court also found the indictment raised issues
with adequate notice and double jeopardy. The prosecutor observed that defendants
would escape liability by providing drugs which were fatal in combination but not
individually, and he indicated that he would speak to the medical examiner to determine

                                            -3-
if the homicide count could be charged as two separate offenses prior to deciding whether
to seek a superseding indictment or pursue an appeal.

       The trial court filed a written order dismissing the 2018 indictment on August 26,
2019, indicating that the charges were being dismissed because they were duplicitous
under Collier, and judgment forms indicating the charges were dismissed were filed on
August 28, 2019. Judgment forms reflecting that the State no longer sought to proceed
on the superseding indictment were also entered. The State filed a timely appeal of the
dismissal of the original indictment.

                                       ANALYSIS

       The State asserts that the trial court erred in dismissing the indictment on the
grounds that it was duplicitous. The State contends that only one count of homicide was
charged and argues that the wording of the indictment constituted a charge outlining
alternative theories of guilt. The State also asserts that the trial court’s reading of the
statute leads to an absurd result. The Defendant responds that the holding in Collier
requires each drug to be charged separately and that the different drugs are not merely
alternate theories but constitute elements of the offense. The defense argues that the
charge would lead to an issue with the unanimity of the verdict and double jeopardy and
that the plain language of the statute requires the State to prove that a single drug was the
proximate cause of death. The parties agree that the count charging delivery of two
separate drugs was duplicitous, and the dismissal of this judgment is not at issue on
appeal. We conclude that the indictment charged a single count of homicide and is
accordingly not duplicitous, and we reverse the judgment dismissing the charge.

        The validity of an indictment is a question of law which we review de novo. State
v. Lindsey, 208 S.W.3d 432, 438 (Tenn. Crim. App. 2006). An indictment serves to
provide notice of the offense charged, an adequate ground upon which to enter a proper
judgment, and protection against double jeopardy. Id. The indictment should state “the
facts constituting the offense in ordinary and concise language, without prolixity or
repetition, in a manner so 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 judgment.” T.C.A. § 40-13-202.

       “Generally, two distinct offenses cannot be charged in the same count of an
indictment.” State v. Jefferson, 529 S.W.2d 674, 678 (Tenn. 1975), overruled on other
grounds by State v. Mitchell, 593 S.W.2d 280, 286 (Tenn. 1980). Accordingly, “all
crimes arising from the same incident that are not lesser included offenses of another
crime charged in the indictment must be charged in separate counts.” State v. Gilliam,
901 S.W.2d 385, 389 (Tenn. Crim. App. 1995); see Tenn. R. Crim. P. 8(a)(1), (b) (joinder
                                            -4-
of offenses in an indictment takes place “with each offense stated in a separate count”).
“[T]he purpose behind the prohibition of a duplicitous indictment is the avoidance of the
following dangers: (1) failure to give the defendant adequate notice of the charges
against him; (2) exposure of the defendant to the possibility of double jeopardy; and (3)
conviction of the defendant by less than a unanimous jury verdict.” State v. Michael
Burnette, No. E2005-00002-CCA-R3-CD, 2006 WL 721306, at *3 (Tenn. Crim. App.
Mar. 22, 2006). A duplicitous indictment is improper, State v. Jones, 589 S.W.3d 747,
757 (Tenn. 2019), and subject to dismissal, State v. Cleo Henderson, No. 02C01-9709-
CR-00356, 1999 WL 86987, at *2 n.1 (Tenn. Crim. App. Feb. 23, 1999). However,
“[w]hen the offense may be committed by different forms, by different means or with
different intents, the forms, means or intents may be alleged in the same count in the
alternative.” T.C.A. § 40-13-206(a). Likewise, a criminal act producing different results
may be charged in the alternative. T.C.A. § 40-13-206(b). A unanimity issue may be
cured by requiring the State to make an election. Burnette, 2006 WL 721306, *4 n.3.

        The Defendant relies on State v. Collier for the proposition that charging second
degree murder by the unlawful distribution of two separate drugs is duplicitous. Collier,
567 S.W.2d at 167. In Collier, the defendant was convicted of six counts of possession
of a controlled substance with the intent to sell, and five of these counts were for five
distinct Schedule II drugs, while the sixth was for a Schedule VI drug. Id. at 166. This
court held that only one conviction based on a Schedule II drug could stand, but the
Tennessee Supreme Court reversed, concluding that the Legislature intended “to create a
separate offense for the possession of each of the controlled substances set out in
Schedules I through VI of the Act.” Id. at 166, 167. Under Collier, charging a defendant
with possession of multiple Schedule II drugs in one count is duplicitous. Id. However,
in the case at bar, the Defendant was not charged with possession of multiple Schedule II
drugs but with a single homicide.

        “While a single indictment that argues alternative theories of the same murder is
uncommon, such an indictment is valid.” State v. Edward Jerome Harbison, No. E2017-
00520-CCA-R3-CD, 2018 WL 674002, at *5 n.1 (Tenn. Crim. App. Feb. 1, 2018), perm.
app. denied (Tenn. May 15, 2018). In State v. Jefferson, the Tennessee Supreme Court
found that an indictment charging homicide was not defective for duplicity because
“[t]his indictment charges the defendant with one offense, the first degree murder of [the
victim] although it charges different means or intents with which the crime was
committed.” Jefferson, 529 S.W.2d at 678. The court in State v. Keele also found that an
indictment charging murder by alternate theories was not duplicitous because “[t]he first
count of the indictment alleges the commission of one offense—murder. The allegation
of the manner in which the offense was committed is in alternate terms.” State v. Keele,
644 S.W.2d 435, 439 (Tenn. Crim. App. 1982); see Charlie W. Dunn v. State, No.
01C01-9504-CR-00119, 1999 WL 799338, at *10 (Tenn. Crim. App. Oct. 8, 1999)
                                          -5-
(felony and premeditated murder could be charged in the same count); see also Ricardo
Davidson v. Avril Chapman, Warden, No. M2014-00565-CCA-R3-HC, 2014 WL
7011499, at *3 (Tenn. Crim. App. Dec. 12, 2014) (holding that although the delivery and
sale of a controlled substance must be charged separately, the indictment was not
duplicitous for charging possession with intent to sell or deliver, “which is a single,
independent offense with its own subpart”); State v. Greg Harris, No. E2003-02834-
CCA-R3-CD, 2005 WL 419082, at *11-12 (Tenn. Crim. App. Feb. 23, 2005) (when the
element of sale or delivery is the object of a conspiracy, the unanimity of the verdict is
not endangered because conspiracy is a single offense).

       We conclude that Collier does not apply to the single count of second degree
murder charged against the Defendant. Because the offense comprised the single
homicide of the victim, the allegations regarding the particular drugs that led to the
victim’s death do not render the charge duplicitous. See Jefferson, 529 S.W.2d at 678;
Harbison, 2018 WL 674002, at *5 n.1; Keele, 644 S.W.2d at 438; see also State v. Davis,
654 S.W.2d 688, 697 (Tenn. Crim. App. 1983) (quoting State v. Irvin, 603 S.W.2d 121,
123 (Tenn. 1980) for the proposition that “‘with few exceptions, in crimes against the
person, when contrasted with crimes against property, there are as many offenses as
individuals affected’”).

        We note that the trial court’s written ruling based the dismissal on the finding that
the indictment was duplicitous, and the State’s brief frames the issue as, “Whether the
trial court erred in ruling that an indictment charging second-degree murder was
duplicitous because it listed the combined delivery of two drugs as the cause of death.”
The State nevertheless also interjects a separate legal issue, whether the statute
criminalizes the distribution of a combination of Schedule II controlled substances
resulting in a victim’s death or whether the offense is limited to distribution of a single
drug which is the proximate cause of death. We do not address the argument that the
statutory language requires the State to prove that the death resulted from the distribution
of a single Schedule II drug. Such an argument does not fall within the scope of our
review, because the issue before us is whether the indictment was duplicitous and
because an indictment charging a single homicide committed by alternate means is not
duplicitous. Whether the statute criminalizes a death resulting from the delivery of a
combination of Schedule II drugs is a separate legal question, as is the unanimity of any
verdict obtained under such a fact pattern. These questions do not fall within the scope of
our review of a dismissal based on a duplicitous indictment.




                                            -6-
                                   CONCLUSION

       The trial court’s judgment dismissing the count charging the Defendant with
second-degree murder on the grounds that it was duplicitous was in error, and we reverse
the judgment and remand for further proceedings.




                                   ___________________________________________
                                   JOHN EVERETT WILLIAMS, PRESIDING JUDGE




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