State of Tennessee v. Michael Smith

A jury convicted Michael Smith (“the Defendant”) of aggravated assault, committed by violating a protective order, and evading arrest. The trial court imposed an effective sentence of ten years, eleven months, and twenty-nine days’ incarceration. The Defendant appealed his convictions and sentences, which the Court of Criminal Appeals affirmed. State v. Smith, No. W2013-01190-CCA-R3-CD, 2014 WL 3954062, at *21 (Tenn. Crim. App. Aug. 13, 2014). The Defendant then requested permission to appeal to this Court, alleging the following errors: (1) the trial court’s failure to require the State to make an election of offenses; (2) the insufficiency of the indictment; (3) the trial court’s refusal to allow the Defendant to sit at counsel table; (4) the trial court’s ruling that, should he elect to testify, the Defendant could be impeached with prior convictions; (5) the trial court’s denial of a mistrial after allowing a witness to testify about a different criminal proceeding against the Defendant; (6) the admission of the victim’s testimony about the Defendant’s prior bad acts; and (7) the trial court’s failure to confine the flight instruction to the aggravated assault charge. We granted the Defendant’s request for permission to appeal. Upon our review of the record and the applicable law, we hold that the State’s failure to elect an offense as to the aggravated assault charge resulted in plain error. Accordingly, we reverse the Defendant’s conviction for aggravated assault and remand the matter to the trial court for a new trial on that charge. We affirm the Defendant’s conviction for evading arrest.