State of Tennessee v. Michael Dean Sexton, E2016-01296-CCA-R3-CD

Background

Defendant Michael Dean Sexton was convicted of one count of theft over $10,000 and one count of vandalism over $10,000 for cutting and removing timber from property owned by Judy Babb Garner; damages appraised at $12,856.00.
Multiple witnesses (land surveyor Jim Reed, property owners/occupants, and forestry experts) testified the logging crossed the Babb boundary and removed hundreds of trees; Defendant and his worker claimed they relied on a found survey pin and stayed on Stephens’ side of a branch.
Trial proceeded with 13 jurors (single-entity jury process); just before deliberations the court excused one juror who reported his wife’s medical issue and could not attend the next day.
The indictment initially named co-defendant Denzil Stephens; the State nolle prossed Stephens’ charges and the prosecutor read a version of the indictment without Stephens’ name to the jury. Defense objected at trial (record incomplete on exact timing).
Defendant raised six appellate issues grouped into (1) juror discharge and ex parte communication; (2) election of offenses and unanimity instruction; and (3) redaction/amendment of the indictment and exclusion of the unredacted indictment exhibit. Court affirmed convictions.

Issues

Issue	State's Argument	Sexton’s Argument	Held
Whether court properly discharged a juror before deliberations and without random draw	Court may use single-entity process; juror had irreconcilable conflict and was "unable to serve" so discharge was within discretion	Discharge was improper because an alternate should be randomly selected and the excusal was based on unsworn ex parte communications	Affirmed — excusal was discretionary under Tenn. R. Crim. P. 24(f)(2)(A); no prejudice shown.
Whether ex parte communications between juror and bailiff/court officer required reversal	Communication concerned juror’s personal inability to serve (wife’s medical issue), not case substance; parties were informed	Court relied on unsworn ex parte statements to remove juror; defendant had no chance to object	Affirmed — communication was non-substantive, defendant failed to timely object or request juror inquiry, no prejudice shown.
Whether State had to elect among multiple acts and whether unanimity instruction required	Theft/vandalism acts arose from a common scheme against same owner/location over same period; aggregation of acts into single count is permitted under Tenn. Code and case law	Election/unanimity instruction required because multiple discrete acts were proved under one count, risking non-unanimous verdict	Affirmed — no election required because acts could be aggregated as a continuing scheme; unanimity instruction unnecessary absent uncharged-offense evidence.
Whether redacting co-defendant’s name from the indictment (and excluding unredacted indictment exhibit) was improper amendment or prejudicial	Reading a version without Stephens’ name was not an amendment that deprived notice; trial court appropriately excluded the unredacted indictment as potentially confusing and gave curative instruction	Omitting Stephens’ name equated to amending the indictment and exclusion of the unredacted indictment from evidence was error	Affirmed — issue waived by incomplete record; omission was not an amendment under the circumstances and jury was told Stephens had been charged then dismissed; exclusion of exhibit was within trial court’s discretion.

Key Cases Cited

State v. Millbrooks, 819 S.W.2d 441 (Tenn. Crim. App.) (trial judge discretion to discharge juror)
State v. Tune, 872 S.W.2d 922 (Tenn. Crim. App.) (ex parte communications reversible only with showing of prejudice)
Guy v. Vieth, 754 S.W.2d 601 (Tenn.) (limitations on ex parte communications between court and jury)
Burlison v. State, 501 S.W.2d 801 (Tenn.) (election requirement touches constitutional rights; court must avoid patchwork verdicts)
State v. Johnson, 53 S.W.3d 628 (Tenn.) (doctrine of election and unanimity purpose)
State v. Brown, 992 S.W.2d 389 (Tenn.) (election requirement ensures juror unanimity)
State v. Byrd, 820 S.W.2d 739 (Tenn.) (indictment sufficiency standards)
State v. Smith, 492 S.W.3d 224 (Tenn.) (indictment must provide notice to accused)