The opinion
09/30/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 11, 2021 Session
STATE OF TENNESSEE v. ZACHARY SMITH
Appeal from the Circuit Court for Hickman County
No. 19-5046CR Michael E. Spitzer, Judge
No. M2020-01056-CCA-R3-CD
Aggrieved of his Hickman County Circuit Court jury conviction of attempted domestic
assault, the defendant, Zachary Smith, appeals, arguing that the trial court should have
dismissed Count 1 of the indictment as duplicitous. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, and J. ROSS DYER, JJ., joined.
Timothy Wills, Nashville, Tennessee, for the appellant, Zachary Smith.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Jennifer Dungan and
Hunter Knight, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
The Hickman County Grand Jury charged the defendant via a two-count
indictment with the domestic assault of the victim, Heather Davidson, on January 3, 2019.
An amended indictment alleged that the assaults occurred “between the dates of January 3,
2019 and January 4, 2019.”
Prior to trial, the defendant moved the trial court to dismiss Count 1 of the
indictment as duplicitous. He argued that the bill of particulars “reveal[ed] the indictment
to be duplicitous” because it alleged two assaults that could satisfy the elements of Count
1. The trial court denied the motion “with the condition that the State make its written
election to be argued to the jury and established in its case in chief. The State has elected
and will proceed on the alleged domestic assault causing bodily injury.”
The case proceeded to trial on February 13, 2020, and, based upon the
evidence presented, the jury convicted the defendant of the lesser included offense of
attempted domestic assault in Count 1 and acquitted him of domestic assault as charged in
Count 2. We do not include a recitation of the facts elicited at trial because they are not
relevant to the single issue presented.
In this timely appeal, the defendant claims only that the trial court erred by
refusing to dismiss Count 1 of the indictment as duplicitous. Duplicity, in this context,
means the charging of more than one offense within a single count of the indictment. For
example, this court has deemed a single count that charges the “sale or delivery” of a
controlled substance improper because it charges two separate offenses. See State v.
Lindsey, 208 S.W.3d 432 (Tenn. Crim. App. 2006). In this case, Count 1 charges only one
offense, the domestic assault by intentionally, knowingly, or recklessly causing bodily
injury to the victim. Because Count 1 charged only a single offense, it is not duplicitous,
and the trial court did not err by denying the motion to dismiss.
To be sure, the amended bill of particulars alleged that the defendant
committed two acts that would satisfy the elements of the offense charged in Count 1, and
the State presented evidence at trial of two separate attacks on the victim that would have
supported a conviction in that count. The issue presented under such circumstances is not
one of duplicity but instead of jury unanimity. When the evidence adduced at trial indicates
that the defendant has committed more offenses against the victim than were charged in
the indictment, the State must elect the offense upon which it intends to rely for each count
of the indictment in order to protect “the defendant’s state constitutional right to a
unanimous jury verdict by ensuring that jurors deliberate and render a verdict based on the
same evidence.”1 State v. Johnson, 53 S.W.3d 628, 631 (Tenn. 2001); see also State v.
Kendrick, 38 S.W.3d 566, 568 (Tenn. 2001); State v. Brown, 992 S.W.2d 389, 391 (Tenn.
1999); State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997). The trial court in this case
appropriately required the State to make an election of offenses in Count 1, and the State
did so. Indeed, the State presented a written election of offenses as to each count that
provided in detail the facts upon which the State relied in support of each count, and the
election was read to the jury. Nothing more was required to protect the defendant’s
constitutional right to a unanimous jury verdict.
To the extent that the defendant’s argument can be construed as a claim that
1
Our prior decisions with regard to juror unanimity are moored in state constitutional law because,
until very recently, the Supreme Court had not concluded that the Sixth Amendment right to a jury trial as
incorporated via the 14th Amendment required a unanimous jury verdict. In Ramos v. Louisiana, however,
the Court did just that, concluding that “[t]here can be no question . . . that the Sixth Amendment’s
unanimity requirement applies to state and federal criminal trials equally.” Ramos v. Louisiana, 590 U.S.
––––, 140 S. Ct. 1390, 1397 (2020) (citations omitted).
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Count 1 as alleged fails to protect him against double jeopardy as to the act of assault that
was not included in the State’s election of offenses, we would note that any charge related
to that offense is barred by Tennessee Rule of Criminal Procedure 8. That rule mandates
the joinder of all offenses that are “based on the same conduct or arise from the same
criminal episode; . . . within the jurisdiction of a single court; and . . . known to the
appropriate prosecuting official at the time of the return of the indictment.” Tenn. R. Crim.
P. 8(a)(1). “A defendant shall not be subject to separate trials for multiple offenses falling
within Rule 8(a)(1) unless they are severed pursuant to Rule 14.” Tenn. R. Crim. P. 8(a)(2).
Accordingly, we affirm the judgment of the trial court.
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JAMES CURWOOD WITT, JR., JUDGE
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