State v. Watkins

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
November 1, 2011 Session

STATE OF TENNESSEE v. NIGEL KAVIC WATKINS

Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Smith County
No. 04-194 John Wootten, Judge

No. M2009-00348-SC-R11-CD - Filed March 9, 2012

We granted the State permission to appeal to determine whether the defendant’s dual
convictions for reckless homicide and aggravated child abuse violate either the federal or
state constitutional prohibition against double jeopardy. Following briefing, oral argument,
and a careful study of Tennessee law governing the issue presented, we ordered the parties
in this appeal, and two other pending appeals involving related issues, to submit additional
briefs addressing certain specific questions concerning the analyses that Tennessee courts
apply in single prosecution cases when determining whether separate convictions under
different statutes constitute the same offense for purposes of the double jeopardy protection
against multiple punishments. We also scheduled consolidated reargument of these three
appeals and invited certain prosecutorial and defense organizations to submit amicus curiae
briefs. Having thoroughly reviewed relevant federal and state precedent and carefully
considered the briefs provided by the parties and by the amici curiae, we have concluded that
the four-factor test set forth in State v. Denton, 938 S.W.2d 373 (Tenn. 1996) should be
abandoned. Furthermore, we have not found, nor have we been provided with, any textual
reason or historical basis for interpreting the Double Jeopardy Clause of the Tennessee
Constitution differently from the Double Jeopardy Clause of the United States Constitution.
Accordingly, we adopt the same elements test enunciated in Blockburger v. United States,
284 U.S. 299, 304 (1932) as the test for determining whether multiple convictions under
different statutes constitute the same offense for purposes of the Double Jeopardy Clause of
the Tennessee Constitution. Applying this test, we conclude that reckless homicide and
aggravated child abuse are not the same offense because their elements differ. Thus, the
defendant’s dual convictions do not violate either the federal or the state constitutional
double jeopardy prohibition. Accordingly, we reverse that portion of the Court of Criminal
Appeals’ judgment merging the reckless homicide conviction into the aggravated child abuse
conviction, and we reinstate the reckless homicide conviction. However, we affirm that
portion of the Court of Criminal Appeals’ judgment remanding this matter to the trial court
for resentencing.
 Tenn. R. App. 11 Appeal by Permission; Judgment of the
Court of Criminal Appeals Reversed in Part, Affirmed in Part;
Remanded to the Trial Court for Resentencing

C ORNELIA A. C LARK, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
G ARY R. W ADE, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Robert E. Cooper, Jr., Attorney General & Reporter; Leslie E. Price and Angele Gregory,
Assistant Attorneys General; Tom P. Thompson, Jr., District Attorney; David Earl Durham,
Jason Lawson, and Brian W. Fuller, Assistant District Attorneys General, for the appellant,
State of Tennessee.

Shawn P. Sirgo, Nashville, Tennessee (on appeal); Comer L. Donnell, District Public
Defender; Tillman W. Payne III, William Cather, and Tom Bilbrey, Assistant Public
Defenders (at trial), for the appellee, Nigel Kavic Watkins.

Stephen Ross Johnson; Wade V. Davies, and Ann C. Short, Knoxville, Tennessee; Aimee
D. Solway, Nashville, Tennessee, for the Amicus Curiae, The Tennessee Association of
Criminal Defense Lawyers.

Kathy Morante, Nashville, Tennessee; William Crabtree, Knoxville, Tennessee; and Garland
Erguden, Memphis, Tennessee, for the Amicus Curiae, Tennessee District Attorneys General
Conference.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Nigel Watkins (“Defendant”) killed the thirteen-month-old victim, Elijah J. Cannon,
by deliberately striking the child’s head “hard” against a wall. Defendant was tried pursuant
to an indictment charging one count of first-degree felony murder during the perpetration of
aggravated child abuse and one count of aggravated child abuse by knowingly, and other than
by accidental means, treating the victim in such a manner as to inflict injury that resulted in
serious bodily injury.

The proof introduced at trial established that, at the time of his death, Elijah lived in
Carthage, Tennessee, with his mother, his two older brothers, ages three and four, and
Defendant. On August 30, 2004, the victim arrived by ambulance at Carthage General
Hospital, where Dr. Richard Rutherford, the emergency room physician on call, diagnosed
“[a]pparent closed head trauma, probably non-accidental.” According to Dr. Rutherford, the
victim “was not breathing on his own,” “was unresponsive to any external stimuli,” had “very

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pale, ashen white” skin, “had bruises about the head and neck,” had an “abnormal” gaze, and
“obviously appeared to be seriously sick, seriously ill.” Dr. Rutherford opined that the
bruising on the victim’s head and neck was unrelated to the closed-head trauma and did not
appear to have been inflicted within the previous few hours.

Emergency room medical personnel immediately began treatment for the victim, and
once he had been stabilized to some degree, Dr. Rutherford arranged for his transfer to
Vanderbilt Children’s Hospital (“Vanderbilt”), explaining that the victim “needed specialty
care if he was going to have any chance of survival.” The victim was transported to
Vanderbilt by air ambulance in critical condition.

Shortly after learning of the victim’s arrival at Carthage General Hospital, Steve
Hopper, Chief of the Carthage Police Department, spoke with Defendant at Defendant’s
Carthage residence on August 30, 2004. Chief Hopper made a video recording of this
conversation using his patrol car video camera. On the video recording, admitted into
evidence at Defendant’s trial and included in the record on appeal, Defendant said repeatedly
that he did not know what was wrong with the victim. Defendant explained that the victim
had been “screaming,” but when Defendant picked him up, the child took a deep breath but
did not exhale, and then went limp and lifeless. Thinking the victim may have had the wind
knocked out of him somehow, Defendant said he began slapping the victim’s back to “knock
the wind back into him.” Defendant also said that he thought the victim might have been
having a seizure because, in addition to going limp, the victim’s eyes had rolled back.
Defendant said the victim’s breathing slowed until six or seven seconds passed between each
of the victim’s breaths. Defendant then knew something was wrong, so he called for the
ambulance. Defendant said the victim had been congested and that he and the victim’s
mother had given the victim medication for the congestion. Defendant speculated that the
medication might have caused the problem. Defendant was not aware of the victim
previously having seizures or any other medical problems.

At the conclusion of the videotape, Defendant accompanied Chief Hopper to the
Carthage Police Department and spoke further about what happened to the victim. At trial,
Chief Hopper read from the notes he made of this conversation:

[Defendant] states that he had been living in the Projects with Ashley
Cannon and these babies for about one year, that Elijiah had been sick, and
approximately 20:00 hours, which would be 8:00 o’clock p.m. regular time,
August 29th ’04, that Ashley put Elijiah to bed and probably gave him some
kind of over the counter medication. That at approximately 22:30 hours,
which would be 10:30 p.m., August 29th ’04, Ashley comes home and we both
go in the children’s bedroom to check on Elijiah. Then approximately 15:00
hours, which would be 3:00 o’clock p.m., August the 30th of ’04, Elijiah

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 wakes from a nap. Ashley takes Elijiah downstairs and then comes back
upstairs to go to the bathroom. Then Elijiah was crying very loudly, that he,
[Defendant], goes downstairs and picks Elijiah up, that when he, [Defendant],
picks Elijiah up, Elijiah takes a deep breath and goes limp. [Defendant] states
that he patted Elijiah on the back, attempted CPR and shook him. He acted out
a vigorous shake using both hands. Then Elijiah was taking a breath every six
to seven seconds and his eyes were rolled back up into his head. He took
Elijiah upstairs to Ashley and the EMS was activated at that point.

After talking with Defendant at the Police Department, Chief Hopper contacted Agent
Russ Winkler of the Tennessee Bureau of Investigation (“TBI”). Agent Winkler and Chief
Hopper drove to Vanderbilt, where the victim had been transferred. Defendant was already
at Vanderbilt when Agent Winkler and Chief Hopper arrived, as were Patrick Warren of the
Department of Children’s Services and TBI Agent Jason Locke. After receiving information
from the doctors at Vanderbilt indicating the victim’s injuries were not consistent with the
statement Defendant gave at the Carthage Police Department, Agent Winkler decided to
conduct a second interview of Defendant. Because Agent Winkler knew of no appropriate
place at Vanderbilt to conduct the interview, Agent Locke asked Defendant to accompany
law enforcement personnel to TBI headquarters, which was nearby. Defendant agreed.
Agent Locke, Chief Hopper, and Defendant drove to TBI headquarters in one vehicle; Agent
Winkler and Mr. Warren drove in a separate vehicle. Defendant was informed that he was
neither under arrest nor in custody and that he could leave at any time.

When the group arrived at TBI headquarters, Agent Winkler interviewed Defendant.
After Defendant’s verbal statement was reduced to written form, Defendant reviewed and
signed the statement. Defendant’s written statement, admitted into evidence at trial, provides
as follows:

I understand that I am not under arrest. I have come to the TBI Office in
Nashville voluntarily to be interviewed about what happened to Elijiah. No
threats have been made to me, and no promises have been made to me for
giving this statement. I live with Ashley Cannon. We have dated for about a
year. We have lived together for about six months. Ashley has three kids that
live with us. Her kids are Oliver, Wylie and Eli. Oliver is 4. Wylie is 3. Eli
is 1. The kids’ daddy is John Bennett. Earlier today, around 3:00 this
afternoon I was just getting up from a nap. Ashley had been taking a nap with
me, but she was already up. Ashley and I napped in our bedroom. When we
got up Eli and the other boys were in their bedroom. Ashley went and got Eli
and took him downstairs. Then Ashley came back upstairs. She told me she
had put Eli on the couch in the living room. Ashley then went to the bathroom
upstairs. While Ashley was in the bathroom Eli started crying downstairs. He

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 was crying really loud. He was crying louder than normal. I went downstairs,
and when I got to the bottom of the stairs Eli was at the bottom of the stairs.
He was on the other side of the baby gate. The baby gate runs across the
bottom of the stairs to keep Eli from going up the stairs. Eli was sitting on the
floor. He was crying loud. I stepped over the baby gate. I jerked him up, and
when I did he hit his head on the handrail. Even after he hit his head on the
handrail he wouldn’t stop crying. I lost my temper and I hit his head on the
wall opposite of the handrail. I hit his head against the corner of the wall on
the opposite side of the handrail. I hit his head against the wall hard. When
I hit his head against the wall he went limp in my arms. His eyes rolled back
in his head, and he just went limp. When he went limp I got scared and took
him up to Ashley. I just told Ashley that Eli had gone limp. She told me to
call 911, and I did. I waited outside the apartment for the ambulance. Ashley
waited outside the apartment with me, and she was holding Eli in her arms. He
never woke up before the ambulance got there. In the past I’ve been too rough
with Eli. I’ve lost my temper with him some in the past. About a week ago Eli
was in his crib and he was throwing things at me, and it made me mad. I got
up and went over to the crib and I took his head and hit it up against the side
of the crib. He just cried real loud, and I gave him his bottle. I knew then I
had hit him too hard, and I was rubbing the back of his head. I’ve never seen
Ashley be rough with Eli or the other two boys. Ashley has never seen me be
rough with the boys. Today I just lost my temper a bit. It would be fair to say
that any injuries Eli has I caused.

After finishing at TBI headquarters, Chief Hopper and Agent Winkler accompanied
Defendant back to Defendant’s Carthage apartment. Defendant executed a written consent
to search. Officers photographed the interior of Defendant’s apartment during the search.
Defendant also agreed to demonstrate his actions toward the victim. Agent Winkler
described the demonstration during his testimony at trial:

Well, he demonstrated hitting the child’s head as he picked the child up,
hitting the child’s head on the hand rail, and then he demonstrated taking the
child and hitting the child’s head up against the wall. Now, what he described
to us when he demonstrated it to us there at the apartment, he said that he hit
the – he hit Eli’s head against this wall here [referring to a wall in a
photograph of the stairwell area].

That was different than what he had told in his written statement to us
because in the written statement, he described hitting the child’s head on the
hand rail and then hitting Eli’s head against the opposite wall, is what he
described in his written statement.

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Agent Winkler testified that the information law enforcement officers received from the
victim’s attending physicians and from the medical examiner about the victim’s injuries “was
consistent with what [Defendant] had said.” After completing the search and the
demonstration, law enforcement personnel left, allowing Defendant to remain at his
apartment. On cross-examination, Chief Hopper acknowledged that the other children in
Defendant’s apartment appeared to be “fine.” He also recalled that Defendant inquired
repeatedly about the victim’s condition.

Dr. Bradly Strohler, a pediatric intensivist1 in the critical care unit at Vanderbilt,
treated the victim upon his arrival from Carthage General Hospital. Dr. Strohler testified that
the victim “had significant evidence of brain damage” and that his “fundamental drive to
breath[e] was . . . impaired.” A CT scan of the victim’s brain “showed evidence of swelling
at that point and some amounts of hemorrhage and bleeding.” Dr. Strohler confirmed that
the victim died at Vanderbilt on August 31, 2004, the day after he arrived. Dr. Strohler
diagnosed the primary cause of the victim’s death as “brain herniation,” and stated that
secondary diagnoses included “shock and hypotension, bilateral retinal hemorrhages
consistent with shaken baby syndrome, and multiple bruises consistent with nonaccidental
trauma.” Dr. Strohler opined that bruising on the victim’s earlobes indicated that they had
been “grabbed forcibly,” and he explained that this sort of bruising typically occurs “when
a child is being lifted or moved by the earlobes.” Dr. Strohler had read the written signed
statement Defendant gave at TBI headquarters and testified that the victim’s injuries were
consistent with the actions described therein. During cross-examination, in response to
questions about “shaken baby syndrome,” Dr. Strohler stated that, “[i]n this situation, slung
into a wall or having his head struck against a wall or a corner of a crib, those sorts of things,
would also account for these symptoms. The shaking itself isn’t necessarily the mechanism.”

Dr. Bruce Levy, medical examiner, performed an autopsy of the victim. Referring to
photographs taken during the autopsy, Dr. Levy indicated five discrete areas of bruising on
the victim’s body: (1) “numerous injuries in and around both of his ears;” (2) bruising in both
shoulder areas; (3) a large bruise on his right leg; (4) bruising on his lower back; and (5) “a
large scrape and bruise or abrasion and contusion” on the back of the victim’s head. After
reviewing Defendant’s written statement, Dr. Levy opined that the victim’s injuries were
consistent with Defendant’s confessed actions. Dr. Levy also opined that the victim “died
as a result of blunt impact injuries to the head, either his head was struck or, as the statement
reads, his head was struck into an object.” Elaborating, Dr. Levy explained that the injuries
Defendant inflicted “caused the [victim’s] brain then to swell. . . . The swelling and the blood
collecting underneath [the victim’s skull] caused irreversible damage to [the victim’s] brain
which then led to his death.” Dr. Levy “ruled the manner of death was a homicide.”

1
According to Dr. Strohler, “the role of the intensivist is to take care of children that are too sick
for routine hospital care.”

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However, on cross-examination, Dr. Levy acknowledged that the bruising on the victim’s
chest area could have been caused by efforts to resuscitate him.

Several witnesses testified on behalf of Defendant. Eudelle Mundy, Defendant’s first
grade school teacher and his ninth and tenth grade guidance counselor, said that she had
“never heard anything negative about” Defendant and stated that “[h]e’s always just been a
sweet, sensitive young man as far as” she knew. When confronted with Defendant’s written
statement, she responded, “[t]hat is not the Nigel that I know.” Richard Brower testified that
he had known Defendant “just about since he’s been born.” Mr. Brower testified that
Defendant “wouldn’t hurt a fly.” Daniel Watkins, Defendant’s younger brother, described
Defendant as “a very peaceful person” and said he had “never seen any kind of violence out
of [Defendant] whatsoever.”

Based on the foregoing proof, on count one of the indictment charging first degree
felony murder during the perpetration of aggravated child abuse, the jury convicted
Defendant of the lesser included offense of reckless homicide, a Class D felony. On the
second count of the indictment, the jury convicted Defendant of the charged offense,
aggravated child abuse, a Class A felony. After a sentencing hearing, the trial court imposed
a four-year sentence of incarceration for Defendant’s reckless homicide conviction and a
twenty-five-year consecutive sentence for Defendant’s aggravated child abuse conviction.

Defendant appealed, challenging the trial court’s denial of the motion to suppress the
statement he gave at TBI headquarters on August 30, 2004; the trial court’s admission of
autopsy photographs; the sufficiency of the evidence to support his convictions; and the
propriety of his sentences. The Court of Criminal Appeals determined on its own motion that
Defendant’s dual convictions violated the double jeopardy prohibitions of the United States
and Tennessee Constitutions. Accordingly, the Court of Criminal Appeals merged the
reckless homicide conviction into the aggravated child abuse conviction and also remanded
for resentencing, but did not otherwise grant relief. State v. Watkins, No. M2009-00348-
CCA-R3-CD, 2010 WL 682506, at *1 (Tenn. Crim. App. Dec. 8, 2009).

We granted the State’s application for permission to appeal to address the double
jeopardy issue.2 Following briefing, oral argument, and a careful study of Tennessee law
governing the issue presented, we ordered the parties in this appeal, and two other pending

2
Defendant raised no additional issues in either his response to the State’s application for permission
to appeal or in his supplemental briefs to this Court following our grant of the State’s application. We
therefore decline to address on their merits any of the issues Defendant raised in the Court of Criminal
Appeals.

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appeals involving related issues,3 to submit additional briefs. In particular, we directed the
parties to address specific questions concerning the tests that courts apply in single
prosecution cases when determining whether separate convictions under different statutes
constitute the same offense and violate the double jeopardy protection against imposing
multiple punishments.4 We also scheduled consolidated reargument5 and invited certain
prosecutorial and defense organizations to submit amicus curiae briefs.

DOUBLE JEOPARDY

A. Standard of Review

Whether multiple convictions violate double jeopardy is a mixed question of law and
fact, which we review de novo without any presumption of correctness. See State v.
Thompson, 285 S.W.3d 840, 846 (Tenn. 2009).

B. Historical Development

Prohibitions against double jeopardy originated in antiquity.6 In 355 B.C., the Greek
orator Demosthenes declared that “‘the laws forbid the same [person] to be tried twice on the
same issue.’”7 The Digest of Justinian, a codification of Roman law produced in 533 A.D.,8
similarly provided that “‘[t]he governor must not allow a man to be charged with the same
offenses of which he has already been acquitted,’”9 and that “‘a person cannot be charged on

3
State v. Cross, No. E2008-02792-SC-R11-CD, 2010 Tenn. LEXIS 1102 (Tenn. Nov. 10, 2010)
(order granting Tennessee Rule of Appellate Procedure 11 application); State v. White, No. E2009-00941-
SC-R11-CD, 2010 Tenn. LEXIS 974 (Tenn. Oct. 12, 2010) (order granting Tennessee Rule of Appellate
Procedure 11 application).
4
State v. Watkins, No. M2009-00348-SC-R11-CD (Tenn. Aug. 24, 2011) (order directing
supplemental briefing, inviting amicus curiae participation, and setting reargument).
5
This appeal was initially heard on February 3, 2011, but was reargued on November 1, 2011.
6
David S. Rudstein, A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy,
14 Wm. & Mary Bill Rts. J. 193, 196-202 (2005) [hereinafter Rudstein, 14 Wm. & Mary Bill Rts. J.].
7
Rudstein, 14 Wm. & Mary Bill Rts. J. at 198 (quoting Demosthenes, Against Leptines, in
Olynthiacs, Philippics, Minor Public Speeches, Speech Against Leptines, XX § 147, at 589 (J.H. Vince
trans., Harvard Univ. Press 1998) (1930)).
8
Rudstein, 14 Wm. & Mary Bill Rts. J. at 199.
9
Rudstein, 14 Wm. & Mary Bill Rts. J. at 199 n.47 (quoting Dig. 48.2.7.2 (Ulpian, De Officio
(continued...)

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account of the same crime under several statutes.’”10 Accordingly, Justice Hugo Black
observed over fifty years ago that “[f]ear and abhorrence of governmental power to try
people twice for the same conduct is one of the oldest ideas found in western civilization.
Its roots run deep into Greek and Roman times.” Bartkus v. Illinois, 359 U.S. 121, 151-52
(1959) (Black, J., dissenting).11

The precise origin and implementation of the prohibition against double jeopardy
within the English common law is uncertain.12 However, in a 1610 decision, Lord Edward
Coke declared that “‘[n]emo debet bis puniri pro uno delicto’—‘no one should be punished
twice for the same offence.’”13 By the eighteenth century, Lord William Blackstone declared
that it had become a “universal maxim of the common law of England, that no man is to be
brought into jeopardy of his life more than once for the same offence.”14 “Lords Coke’s and
Blackstone’s formulation of the double jeopardy protection encompassed four discrete
safeguards: prohibiting reprosecution for the same offense upon either a prior acquittal
(autrefois acquit), a prior conviction (autrefois convict), a former pardon, and a previous
conviction on a lesser-included offense (autrefois attaint).” 15

9
(...continued)
Proconsulis 7), in 4 The Digest of Justinian 797 (Theodor Mommsen et al. eds., Univ. of Pa. Press 1985)
(1870)).
10
Rudstein, 14 Wm. & Mary Bill Rts. J. at 199 n.48 (quoting Dig. 48.2.14 (Paulus, De Officio
Proconsulis 2), in 4 The Digest of Justinian 799 (Theodor Mommsen et al. eds., Univ. of Pa. Press 1985)
(1870)).
11
See also Whalen v. United States, 445 U.S. 684, 699 (1980) (Rehnquist, J., dissenting) (“Historians
have traced the origins of our constitutional guarantee against double jeopardy back to the days of
Demosthenes . . . .”); Benton v. Maryland, 395 U.S. 784, 795 (1969) (noting that the origins of the guarantee
against double jeopardy “can be traced to Greek and Roman times”).
12
Rudstein, 14 Wm. & Mary Bill Rts. J. at 202-21 (discussing the development of the double
jeopardy prohibition in English common law).
13
Carissa B. Hessick and F. Andrew Hessick, Double Jeopardy as a Limit on Punishment, 97 Cornell
L. Rev. 45, 50 n.21 (Nov. 2011) [hereinafter Hessick, 97 Cornell L. Rev.] (quoting Dr. Bonham’s Case,
(1610) 77 Eng. Rep. 638 (K.B.) 654).
14
4 William Blackstone, Commentaries *335-36; see also Rudstein, 14 Wm. & Mary Bill Rts. J. at
220-221.
15
Alfredo Garcia, The Fifth Amendment: A Comprehensive and Historical Approach, 29 U. Tol. L.
Rev. 209, 236 (1998) (citing 4 William Blackstone, Commentaries *335 (N.Y. & London, Garland 1978)
(1790); Sir Edward Coke, The Third Part of the Institutes of the Laws of England 212-14 (4th ed. London,
John Moore 1635); Matthew Hale, 2 The History of the Pleas of the Crown 240 (Phila., R.H. Small 1847));
see also United States v. Wilson, 420 U.S. 332, 340 (1975).

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 Prohibitions against double jeopardy also developed in Colonial American law.16
Colonial Massachusetts and Connecticut adopted laws expressly providing protections
against double jeopardy.17 Other colonies allowed defendants threatened with “multiple
prosecutions to plead autrefois acquit [prior acquittal] or autrefois convict [prior
conviction].” 18

C. United States Constitution

Not surprisingly, given its longstanding recognition, the Founders included protection
against double jeopardy in the Bill of Rights to the United States Constitution.19 The Double
Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth
Amendment,20 provides that “[n]o person shall . . . be subject for the same offense to be twice
put in jeopardy of life or limb.” U.S. Const. amend. V. This succinct and seemingly
straightforward language has yielded a body of case law that has been described as “a
veritable Sargasso Sea21 which could not fail to challenge the most intrepid judicial
navigator.” Albernaz v. United States, 450 U.S. 333, 343 (1981); see also Yeager v. United
States, 557 U.S. 110, ___, 129 S. Ct. 2360, 2365 (2009) (recognizing that the Court has
“decided an exceptionally large number of cases interpreting” the Double Jeopardy Clause
and citing United States v. DiFrancesco, 449 U.S. 117, 126-27 (1980) (collecting cases)).
The first step in successfully traversing the sea of case law is to identify the precise double
jeopardy protection implicated.

16
See Rudstein, 14 Wm. & Mary Bill Rts. J. at 221-23 (discussing the development of double
jeopardy prohibitions in Colonial America); Hessick, 97 Cornell L. Rev. at 51 (same).
17
See Rudstein, 14 Wm. & Mary Bill Rts. J. at 222; Hessick, 97 Cornell L. Rev. at 51.
18
See Hessick, 97 Cornell L. Rev. at 51.
19
See Rudstein, 14 Wm. & Mary Bill Rts. J. at 226-32 (discussing the history and adoption of the
Fifth Amendment Double Jeopardy Clause); Hessick, 97 Cornell L. Rev. at 51 (same); George C. Thomas,
A Unified Theory of Multiple Punishment, 47 U. Pitt. L. Rev. 1, 3 n.3 (1985) [hereinafter Thomas, 47 U. Pitt.
L. Rev.] (same).
20
Benton, 395 U.S. at 794.
21
The Sargasso Sea is part of the North Atlantic Ocean. Described as elliptical in shape and strewn
with a brown floating seaweed, it “was first mentioned by Christopher Columbus, who crossed it on his
initial voyage in 1492. The presence of the seaweed suggested the proximity of land and encouraged
Columbus to continue, but many early navigators had the fear (actually unfounded) of becoming entangled
within the mass of floating vegetation.” Sargasso Sea. Encyclopedia Britannica Online.
http://www.britannica.com/EBchecked/topic/524237/Sargasso-Sea. (last visited Mar. 7, 2012).

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 The Double Jeopardy Clause has been interpreted as providing three separate
protections: (1) protection against a second prosecution for the same offense after acquittal;
(2) protection against a second prosecution for the same offense after conviction; and (3)
protection against multiple punishments for the same offense.22 North Carolina v. Pearce,
395 U.S. 711, 717 (1969) abrogated on other grounds by Alabama v. Smith, 490 U.S. 794
(1989); see also Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767, 769 n.1 (1994); Schiro v.
Farley, 510 U.S. 222, 229 (1994); Ohio v. Johnson, 467 U.S. 493, 498 (1984); Justices of
Bost. Mun. Ct. v. Lydon, 466 U.S. 294, 306-07 (1984). This appeal involves the third
category of protection afforded by the Double Jeopardy Clause—protection against multiple
punishments for the same offense imposed in a single prosecution.

The Supreme Court decision most often cited as recognizing this third category of
protection is Ex Parte Lange, 85 U.S. 163, 170 (1873).23 Lange was convicted of a criminal
offense for which a statute authorized a maximum sentence of either one year imprisonment
or a maximum $200 fine, but not both. Ex Parte Lange, 85 U.S. at 175. Despite this
statutory limitation, the trial judge mistakenly imposed both a fine and a sentence of
incarceration. Id. After Lange paid the fine and served five days of the prison sentence, the
trial judge realized his error, vacated the original sentence, and resentenced Lange to one
year in prison. Id. The Supreme Court reversed, reasoning that imposition of a sentence of
incarceration would punish Lange twice for a single offense. Id. The Court explained that
“when the prisoner, as in this case, by reason of a valid judgment, had fully suffered one of
the alternative punishments to which the law alone subjected him, the power of the court to
punish further was gone.” Id. at 176. The Double Jeopardy Clause, the Court concluded,

22
In addition to these categories of protection, two “vitally important interests” underlie the Double
Jeopardy Clause. Yeager, 557 U.S. at ___, 129 S. Ct. at 2365.

The first [interest] is “the deeply ingrained” principle that “the State with all its resources
and power should not be allowed to make repeated attempts to convict an individual for an
alleged offense, thereby subjecting him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing
the possibility that even though innocent he may be found guilty.” The second interest is
the preservation of “the finality of judgments.”

Yeager, 557 U.S. at ___, 129 S. Ct. at 2365-66 (citations omitted). Neither of these interests is implicated
in this appeal.
23
Yeager, 557 U.S. at ___, 129 S. Ct. at 2365 (identifying Ex Parte Lange as the decision that
interpreted the Double Jeopardy Clause as providing protection against multiple punishments in the same
prosecution); Kurth Ranch, 511 U.S. at 798-99 (Scalia, J., dissenting) (tracing the history of the protection
against multiple punishment in a single prosecution to Ex Parte Lange and discussing the case); Anne Bowen
Poulin, Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot, 77 U. Colo. L. Rev. 595, 614
(2006) (identifying Ex Parte Lange as “the decision most pervasively cited for the proposition that the
Double Jeopardy Clause prohibits multiple punishments, even if imposed in a single proceeding”).

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“was designed as much to prevent the criminal from being twice punished for the same
offence as being twice tried for it.” Id. at 173; see also id. at 178 (stating that common law,
the Constitution, and “the dearest principles of personal rights” all forbade the action of the
trial court). Thus, in determining whether Lange’s rights under the Double Jeopardy Clause
had been violated, the Court focused upon the punishment authorized by the statute and
emphasized the trial court’s lack of authority to impose a punishment in excess thereof. Id.
at 176.

Legislative intent with respect to punishment remains the focus of the analysis when
a defendant in a single prosecution relies upon the Double Jeopardy Clause’s protection
against multiple punishments. The United States Supreme Court has declared that “[w]ith
respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does
no more than prevent the sentencing court from prescribing greater punishment than the
legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). “[T]he question of
what punishments are constitutionally permissible is not different from the question of what
punishments the Legislative Branch intended to be imposed. Where Congress intended . . . to
impose multiple punishments, imposition of such sentences does not violate the
Constitution.” Albernaz, 450 U.S. at 344 (footnote omitted). The Double Jeopardy Clause
does not limit the legislative authority to define criminal offenses and to prescribe
punishments. See Brown v. Ohio, 432 U.S. 161, 165 (1977) (“The legislature remains free
under the Double Jeopardy Clause to define crimes and fix punishments . . . .”). This is true
because “within our federal constitutional framework the legislative power, including the
power to define criminal offenses and to prescribe the punishments to be imposed upon those
found guilty of them, resides wholly with the Congress.” Whalen, 445 U.S. at 689.

Thus, in single prosecution cases, the double jeopardy prohibition against multiple
punishments functions to prevent prosecutors and courts from exceeding the punishment
legislatively authorized. See Albernaz, 450 U.S. at 344; Brown, 432 U.S. at 165.24 “If a
federal court exceeds its own authority by imposing multiple punishments not authorized by
Congress, it violates not only the specific guarantee against double jeopardy, but also the
constitutional principle of separation of powers in a manner that trenches particularly harshly
on individual liberty.” Whalen, 445 U.S. at 689. “Where . . . a legislature specifically
authorizes cumulative punishment under two statutes, regardless of whether those two
statutes proscribe the ‘same’ conduct . . . a court’s task of statutory construction is at an end
and . . . the trial court or jury may impose cumulative punishment under such statutes in a
single trial.” Hunter, 459 U.S. at 368-69.

24
See also State v. Blackburn, 694 S.W.2d 934, 936 (Tenn. 1985) (noting that the United States
Supreme Court has “made it clear that the ‘final component’ of double jeopardy protection against
cumulative punishments, as contrasted with that against multiple trials, is designed to insure that courts
restrict themselves in sentencing to the limits established by the legislature”).

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 Legislative intent, however, is not always clear. As a canon of statutory construction,
the United States Supreme Court presumes “that where two statutory provisions proscribe
the ‘same offense,’ a legislature does not intend to impose two punishments for that offense.”
Rutledge v. United States, 517 U.S. 292, 297 (1996) (quoting Whalen, 445 U.S. at 691-92)
(internal quotation marks omitted). Of course, in order to apply this presumption, courts
must first determine whether two statutory provisions proscribe the “same offense.” The
analysis courts apply to answer this question depends upon the type of multiple punishment
claim being addressed.

In single prosecutions, multiple punishment claims ordinarily fall into one of two
categories, frequently referred to as “unit-of-prosecution” and “multiple description” claims.
See State v. Schoonover, 133 P.3d 48, 60-61 (Kan. 2006); State v. Gallegos, 254 P.3d 655,
662 (N.M. 2011); Childress v. State, 285 S.W.3d 544, 549 n.2 (Tex. Ct. App. 2009); State
v. Ramos, 217 P.3d 384, 388-89 (Wash. Ct. App. 2009); State v. Derango, 613 N.W.2d 833,
841-42 (Wis. 2000); Tucker v. State, 245 P.3d 301, 312 (Wyo. 2010); Thomas, 47 U. Pitt.
L. Rev. at 12. For ease of reference, we also adopt these terms.

Unit-of-prosecution claims arise when defendants who have been convicted of
multiple violations of the same statute assert that the multiple convictions are for the “same
offense.”25 When addressing unit-of-prosecution claims, courts must determine “what the
legislature intended to be a single unit of conduct for purposes of a single conviction and
punishment.” Thomas, 47 U. Pitt. L. Rev. at 11; see also Universal C.I.T. Credit Corp., 344
U.S. at 221 (describing the only issue before the Court as “[w]hat Congress has made the
allowable unit of prosecution”); United States v. Weathers, 186 F.3d 948, 952 (D.C. Cir.
1999) (“Where two violations of the same statute rather than two violations of different
statutes are charged, courts determine whether a single offense is involved not by applying
the Blockburger test, but rather by asking what act the legislature intended as the ‘unit of
prosecution’ under the statute.”); State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997) (“The
legislature has the power to create multiple ‘units of prosecution’ within a single statutory
offense, but it must do so clearly and without ambiguity.”). Courts apply the “rule of lenity”
when resolving unit-of-prosecution claims, meaning that any ambiguity in defining the unit
of conduct for prosecution is resolved against the conclusion that the legislature intended to

25
See, e.g., Bell v. United States, 349 U.S. 81 (1955) (holding that transporting two women across
state lines for immoral purposes in a single transaction constituted the same offense, i.e., one violation of the
Mann Act, not two); United States v. Universal C.I.T. Credit Corp., 344 U.S. 218 (1952) (explaining that a
managerial decision was one offense under the Fair Labor Standards Act even though it resulted in
underpayment to more than one employee over a course of weeks); Ebeling v. Morgan, 237 U.S. 625 (1915)
(upholding six convictions based upon defendant’s cutting into six mail bags in a single transaction because
Congress intended punishment for each act of damage to a mail bag); In re Snow, 120 U.S. 274 (1887)
(holding that a continuous thirty-five-month period of co-habitation is one offense because Congress did not
create separate offenses based on temporal distinctions).

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authorize multiple units of prosecution. See Gore v. United States, 357 U.S. 386, 391-92
(1958) (recognizing that the rule of lenity may be applied in resolving unit-of-prosecution
claims); see also Thomas, 47 U. Pitt. L. Rev. at 17 (“[A]ny ambiguity in defining the unit of
conduct must be resolved against the conclusion that each physical action is a separate
violation.”).

Defendant has been convicted of violating two different statutes; thus, the Defendant’s
appeal involves a multiple description claim—the second category. Multiple description
claims arise in cases in which defendants who have been convicted of multiple criminal
offenses under different statutes allege that the convictions violate double jeopardy because
the statutes punish the “same offense.” See, e.g., Albernaz, 450 U.S. at 336-39 (holding that
Congress intended to permit dual convictions of conspiracy to import marijuana and
conspiracy to distribute marijuana even though such violations arose from a single agreement
or conspiracy having dual objectives); Gore, 357 U.S. at 390-91 (holding that the
defendant’s three convictions under different statutes did not violate the Double Jeopardy
Clause, even though they were based on a single sale of narcotics, because Congress had
proscribed three offenses); Morgan v. Devine, 237 U.S. 632, 638 (1915) (upholding dual
convictions of larceny and burglary based on a finding that Congress “manifest[ly] . . .
intended to describe separate and distinct offenses”); see also Schoonover, 133 P.3d at 60;
Thomas, 47 U. Pitt. L. Rev. at 12.

In multiple description cases, when determining whether two statutes define the same
offense, the United States Supreme Court long ago declared that “where the same act or
transaction constitutes a violation of two distinct statutory provisions, the test to be applied
to determine whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304
(1932); see also Rutledge, 517 U.S. at 297 (stating that the Court has applied Blockburger
for over a half century to determine whether a defendant has been punished twice for the
“same offense”). The Blockburger test requires an examination of the statutory elements in
the abstract, without regard to the proof offered at trial in support of the offenses. See United
States v. Dixon, 509 U.S. 688, 696 (1993) ( “T]he same-elements test, sometimes referred
to as the ‘Blockburger’ test, inquires whether each offense contains an element not contained
in the other . . . .”); Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975) (“As
Blockburger and other decisions applying its principle reveal . . . the Court’s application of
the test focuses on the statutory elements of the offense.”) (citations omitted). If each offense
includes an element that the other offense does not, “the Blockburger test is satisfied,
notwithstanding a substantial overlap in the proof offered to establish the crimes.” Iannelli,
420 U.S. at 785 n.17; see also Illinois v. Vitale, 447 U.S. 410, 416 (1980) (recognizing that
the Blockburger test “focuses on the proof necessary to prove the statutory elements of each
offense, rather than on the actual evidence to be presented at trial”).

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 The Blockburger test has been credited with serving at least two purposes. See
Schoonover, 133 P.3d at 62. First, the Blockburger test is described as remaining “loyal” to
the text of the Double Jeopardy Clause, which proscribes multiple punishment for the “same
offense” and does not proscribe multiple punishment for the “same conduct.” Schoonover,
133 P.3d at 62 (citing Dixon, 509 U.S. at 704). Second, the Blockburger test has been
characterized as preserving the appropriate separation of powers by focusing the analysis
upon legislative intent, rather than upon a defendant’s conduct or the proof introduced at a
particular trial. See Schoonover, 133 P.3d at 62 (citing Whalen, 445 U.S. at 689).

The Blockburger test also has been described as promoting “two important practical
implications.” Thomas, 47 U. Pitt. L. Rev. at 35. First, because the Blockburger test
evaluates the statutory elements of the offenses without reference to the proof offered at trial,
“a motion to dismiss one count or one indictment based on multiple punishment grounds can
be decided prior to trial by simply comparing the statutes, and a defendant who is charged
improperly will not have to undergo the anxiety of a trial before the error is redressed.” Id.
at 36. Second, because the Blockburger test focuses on statutory elements rather than proof,
“a court can review a multiple punishment claim without a time-consuming review of the
trial transcript.” Id.

The Blockburger test involves a two-step process. First, the threshold inquiry under
Blockburger is whether the alleged statutory violations arise from “the same act or
transaction.” See Blockburger, 284 U.S. at 301-04 (considering first whether two sales made
to the same person arose from “the same act or transaction” before determining whether “the
same act or transaction” constituted “a violation of two distinct statutory provisions”); see
also State v. Thompson, 495 A.2d 1054, 1058 (Conn. 1985); Schoonover, 133 P.3d at 62;
State v. Matey, 891 A.2d 592, 599 (N.H. 2006); George C. Thomas III, A Blameworthy Act
Approach to the Double Jeopardy Same Offense Problem, 83 Cal. L. Rev. 1027, 1035 n.34
(1995) (noting that the “threshold same-act requirement must be satisfied before it makes
sense to compare statutory act-types”). This “inquiry does not determine whether there is a
double jeopardy violation; rather it determines only if there could be a violation.”
Schoonover, 133 P.3d at 62. When a court determines that separate convictions do not arise
from the same act or transaction, then there cannot be a double jeopardy violation; thus,
courts need not proceed to the second step of the Blockburger test. See, e.g., Matey, 891
A.2d at 599 (“For double jeopardy purposes, the two violations cannot be the ‘same
offense,’ as they do not even meet the threshold requirement of the Blockburger test that the
violations arise out of the ‘same act or transaction.’”); State v. Armendariz, 141 P.3d 526,
532 (N.M. 2006) (“The first part of the [Blockburger] test requires the determination of
whether the conduct underlying the offenses is unitary. If it is, we proceed to the second part
of the test, which requires us to examine the relevant statutes to determine whether the
Legislature intended to create separately punishable offenses.”).

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 Where the threshold is met, meaning the convictions arose from the same act or
transaction, a court next examines the statutes to determine whether the crimes of which the
defendant was convicted constitute the same offense. Blockburger, 284 U.S. at 304.26
Where each statutory offense includes an element not contained in the other, the offenses are
distinct. Id.; see also Dixon, 509 U.S. at 696. Where the offenses are distinct under
Blockburger, the legislature is presumed to have intended to allow the offenses to be
punished separately. See Albernaz, 450 U.S. at 339; Whalen, 445 U.S. at 691-92.

The United States Supreme Court has made it clear that the presumptions supplied by
Blockburger, either in favor of multiple punishment if the statutory offenses are distinct, or
against multiple punishment if the statutory offenses are the same, may be overcome by
explicit declarations of legislative intent. See, e.g., Hunter, 459 U.S. at 368-69 (recognizing
that even when statutes proscribe the same offense under Blockburger, the presumption
against multiple punishment will be overcome by a specific legislative authorization
permitting cumulative punishment); Albernaz, 450 U.S. at 340 (“[T]he [Blockburger] rule
should not be controlling where . . . there is a clear indication of contrary legislative intent.”).

The vast majority of our sister states utilize the Blockburger test when determining
whether two offenses are the same under their respective state law double jeopardy
prohibition, regardless whether the double jeopardy protection is afforded by the state
constitution, a state statute, or state common law.27

26
To be precise and foster clarity in Tennessee law, we deem it important here to emphasize that the
second step of the Blockburger test is of no value when adjudicating unit-of-prosecution claims that involve
multiple convictions under the same statute. See Thomas, 47 U. Pitt. L. Rev. at 24 n.115 (“It is . . .
impossible to apply the required evidence test literally to multiple violations of a single statute; one cannot
ascertain whether ‘each provision requires proof of a fact which the other does not,’ [Blockburger,] 284 U.S.
at 304, when only one statutory provision is involved.”); see also Tucker, 254 P.3d at 312 (“[I]n cases that
involve two violations of the same statute, the ‘same elements’ test does not apply. Instead, when two
violations arise from the same statute, we look directly to the intent of the legislature to determine the
appropriate ‘unit of prosecution.’”).
27
See Lorance v. State, 770 So. 2d 644, 648 (Ala. Crim. App. 1999); State v. Eagle, 994 P.2d 395,
397 (Ariz. 2000); Cothren v. State, 42 S.W.3d 543, 548 (Ark. 2001); People v. Reed, 137 P.3d 184, 186-88
(Cal. 2006); People v. Gordon, 160 P.3d 284, 286-87 (Colo. App. 2007); State v. Brown, 11 A.3d 663, 672-
73 (Conn. 2011); Johnson v. State, 5 A.3d 617, 620-21 (Del. 2010); Ivey v. State, 47 So. 3d 908, 910 (Fla.
Dist. Ct. App. 2010); Drinkard v. Walker, 636 S.E.2d 530, 532 (Ga. 2006); State v. Feliciano, 115 P.3d 648,
657-58 (Haw. 2005); People v. Dinelli, 841 N.E.2d 968, 978-79 (Ill. 2005); State v. Perez, 563 N.W.2d 625,
627-29 (Iowa 1997); State v. Daniels, 588 N.W.2d 682, 684 (Iowa 1998); Schoonover, 133 P.3d at 78; State
v. Williams, 395 A.2d 1158, 1167 (Me. 1978); Marquardt v. State, 882 A.2d 900, 930-31 (Md. 2005);
Commonwealth v. Rabb, 725 N.E.2d 1036, 1041 (Mass. 2000); People v. Garland, 777 N.W.2d 732, 734
(Mich. Ct. App. 2009); State v. Holmes, 778 N.W.2d 336, 340-41 (Minn. 2010); Traylor v. State, 72 So. 3d
531, 532 (Miss. Ct. App. 2011); Yates v. State, 158 S.W.3d 798, 801-02 (Mo. Ct. App. 2005); State v.
(continued...)

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 D. Tennessee Constitution

This Court has not adopted the Blockburger test when determining whether two
offenses are the same under the Double Jeopardy Clause of the Tennessee Constitution.
Tenn. Const. art. I, § 10. Rather, Tennessee currently applies a unique test28 consisting of
four factors that are weighed to determine whether multiple convictions violate double
jeopardy. See State v. Denton, 938 S.W.2d 373, 381 (Tenn. 1996). As will be discussed
more fully hereinafter, under the four-factor Denton test, Tennessee courts first compare the
statutory elements in the abstract, as Blockburger directs. Next, applying the principles of
Duchac v. State, 505 S.W.2d 237 (Tenn. 1973), Tennessee courts consider whether the same
evidence was used to establish the offenses. Third, Tennessee courts consider whether the
offenses involved multiple victims or discrete acts. Finally, Tennessee courts determine

(...continued)
Wardell, 122 P.3d 443, 446 (Mont. 2005); State v. Huff, 776 N.W.2d 498, 501-02 (Neb. 2009); Wilson v.
State, 114 P.3d 285, 294 (Nev. 2005); State v. Lee, 213 P.3d 509, 511-12 (N.M. Ct. App. 2009); State v.
Ezell, 582 S.E.2d 679, 682 (N.C. Ct. App. 2003); State v. Moos, 758 N.W.2d 674, 678 (N.D. 2008); Logsdon
v. State, 231 P.3d 1156, 1165 (Okla. Crim. App. 2010); Commonwealth v. Caufman, 662 A.2d 1050, 1052
(Pa. 1995); State v. Marsich, 10 A.3d 435, 442 (R.I. 2010); State v. Elders, 688 S.E.2d 857, 861 (S.C. Ct.
App. 2010); State v. Deneui, 775 N.W.2d 221, 247-48 (S.D. 2009); Pomier v. State, 326 S.W.3d 373, 385
(Tex. Ct. App. 2010); State v. Franklin, 735 P.2d 34, 35-36 (Utah 1987); Coleman v. Commonwealth, 539
S.E.2d 732, 734 (Va. 2001); In re Borrero, 167 P.3d 1106, 1108 (Wash. 2007); State v. Proctor, 709 S.E.2d
549, 558-59 (W. Va. 2011); State v. Derango, 613 N.W.2d 833, 841-42 (Wis. 2000); Tucker v. State, 245
P.3d 301, 311-12 (Wyo. 2010).

Other states’ approaches vary. New Hampshire courts “review and compare the statutory elements
of the charged offenses in light of the actual allegations contained in the indictments.” State v. MacLeod,
685 A.2d 473, 476 (N.H. 1996). Vermont’s constitution provides no state constitutional protection against
double jeopardy, and statutory protection in Vermont affords double jeopardy protection only in the case of
acquittal. State v. Corey, 561 A.2d 87, 89 (Vt. 1989). Uncertainty exists in Idaho as to the test utilized to
determine if there is a violation of the state constitutional prohibition against double jeopardy. State v.
Corbus, 256 P.3d 776, 779-83 (Idaho Ct. App. 2011). Courts in Kentucky, New York, and Ohio employ
statutory standards which may be stricter than Blockburger with regard to imposing additional limitations
on multiple punishments arising from a single prosecution. See Quisenberry v. Commonwealth, 336 S.W.3d
19, 40 (Ky. 2011); Suarez v. Byrne, 890 N.E.2d 201, 209 (N.Y. 2008); State v. Brown, 895 N.E.2d 149,
152-56 (Ohio 2008). Other states employ more exacting standards than Blockburger in single prosecution
multiple punishment cases, although some of these standards are only marginally more demanding. See Todd
v. State, 917 P.2d 674, 681 (Alaska 1996); Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008); State v. Drake,
71 So. 3d 452, 461 (La. Ct. App. 2011); State v. Parker, 762 A.2d 690, 695 (N.J. Super. Ct. App. Div. 2000);
see also Alex Tsiatsos, Note, Double Jeopardy Law and The Separation of Powers, 109 W. Va. L. Rev. 527,
app. B (2007) (collecting cases).
28
Susan R. Klein, Double Jeopardy: The History, The Law By George C. Thomas, III, 88 Cal. L.
Rev. 1001, 1014 & n.47 (2000) (book review) (describing Tennessee as one of only two states to apply a
“conglomeration of various tests thus far proposed” and explaining how Tennessee’s test differs from the
test New Jersey applies).

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whether the purpose of the respective statutes is the same or different. Denton, 938 S.W.2d
at 381; see also State v. Winningham, 958 S.W.2d 740, 743 (Tenn. 1997). “No single aspect
of this analysis is given controlling weight,” and “each factor must be weighed and
considered in relation to the others.” Cable v. Clemmons, 36 S.W.3d 39, 42 (Tenn. 2001).

In attempting to apply the four-factor Denton test in this appeal, questions have
emerged concerning its analytical soundness and practical effectiveness. Thus, we next
undertake a comprehensive review of the Denton test and consider whether either the text or
the historical development of the Tennessee Constitution requires adoption of a test different
from, or more stringent than, the Blockburger same elements test.

As already noted, the Double Jeopardy Clause of the Fifth Amendment was not
applied to the States through the Fourteenth Amendment until 1969. See Benton, 395 U.S.
at 794. Nevertheless, with language that has endured unchanged through three state
constitutions, and for more than two centuries, the Tennessee Constitution guarantees “[t]hat
no person shall, for the same offence, be twice put in jeopardy of life or limb.”29 We have
interpreted the protections afforded by article I, section 10 as “co-extensive” with the Double
Jeopardy Clause of the Fifth Amendment. State v. Harris, 919 S.W.2d 323, 327 (Tenn.
1996).30

Like its federal counterpart, article I, section 10 protects against three evils: (1) a
second prosecution following an acquittal; (2) a second prosecution following a conviction;
and (3) multiple punishments for the same offense. Denton, 938 S.W.2d at 378; see also
Harris, 919 S.W.2d at 327; State v. Mounce, 859 S.W.2d 319, 321 (Tenn. 1993). As already
noted, this appeal implicates the third category—protection against multiple punishments for
the same offense. This “third category . . . has presented courts with the greatest challenge.”
Denton, 938 S.W.2d at 379.

Paralleling the United States Supreme Court’s understanding of single prosecution
multiple punishment cases, this Court has declared that when “multiple sentences are
imposed in a single trial, double jeopardy protection ‘is limited to assuring that the court does
not exceed its legislative authorization by imposing multiple punishments for the same
offense.’” Lewis, 958 S.W.2d at 739 (quoting Brown, 432 U.S. at 165). We have
emphasized that “[t]he key issue in multiple punishment cases is legislative intent.” Denton,
938 S.W.2d at 379; see also State v. Godsey, 60 S.W.3d 759, 777 (Tenn. 2001) (“The key
issue is ‘whether the legislature intended cumulative punishment.’” (quoting Blackburn, 694

29
Tenn. Const. art. I, § 10 (1870); Tenn. Const. art. I, § 10 (1835); Tenn. Const. art. XI, § 10 (1796).
30
We have also noted, however, that federal precedents are “not conclusive” with respect to the
proper interpretation of article I, section 10. Thompson, 285 S.W.3d at 847 n.6.

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S.W.2d at 936)). Therefore, “[w]hen the legislature has made its intent clear that cumulative
punishment is intended, such as in the case of felony murder and the underlying felony, our
[further double jeopardy] analysis . . . is pretermitted.” Denton, 938 S.W.2d at 379 n.14
(citation omitted); see also Godsey, 60 S.W.3d at 778 (“Where the Legislature has indicated
that cumulative punishment is intended, the double jeopardy analysis need not proceed any
further.”).

When legislative intent is not clear, however, Tennessee courts have long struggled
to articulate a test that consistently and predictably identifies which criminal offenses are the
same for purposes of double jeopardy. See Black, 524 S.W.2d at 921-24 (Henry, J.,
dissenting) (discussing the confusion and irreconcilable Tennessee cases involving this
issue); see also Bobby Lynch, Jr., Comment, Identity of Criminal Offenses in Tennessee, 43
Tenn. L. Rev. 613, 624 & n.67 (1976) (discussing five Tennessee Supreme Court decisions
decided between 1847 and1904 that left the issue “hopelessly confused,” in part because the
Court did not distinguish between cases involving successive prosecutions and multiple
punishment claims).

In Black, a four-to-one decision, this Court sought to clarify the test that courts must
apply to determine whether two statutes define the “same offense” for double jeopardy
purposes. The majority in Black considered the Blockburger test, the guidelines included in
the American Law Institute’s Proposed Official Draft of the Model Penal Code, and the
“various tests and rules” discussed in a treatise on criminal law and procedure. Black, 524
S.W.2d at 919-20. However, the Court did not “find the formulation of the various ‘tests’
into catch words, such as ‘same transaction’ or ‘same evidence’ to be particularly helpful.”
Id. at 919. Rather, the Court declared that “each case requires close and careful analysis of
the offenses involved, the statutory definitions of the crimes, the legislative intent and the
particular facts and circumstances.” Id. Applying this rule, the majority held that armed
robbery and assault with intent to commit second degree murder were distinct and separate
offenses. Id. at 920. In so holding, the Court noted that “[t]he same evidence was not
required to prove the armed robbery as was required to prove the assault with intent to
murder,” that the “statutory elements of the two offenses are different,” and that “neither
offense is included within the other.” Id.

Justice Henry concurred with the majority’s holding that the two offenses were
separate and distinct; however, he dissented from the remainder of the majority opinion.
Black, 524 S.W.2d at 920. Justice Henry explained that the Court had been “beseeched to
address th[e] vexatious and recurring problem” that arises in multiple punishment cases. Id.
at 921. He criticized the majority’s failure to “provide sorely needed guidance to the bench
and bar of the State,” and said the “ad hoc standard” the majority reaffirmed in Black had

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already “produced a hodge-podge of decisions which defy logical analysis.” Id. at 921-22.31

Twenty-one years later, this Court revisited the “vexatious and recurring” question of
what test courts should apply to determine whether two statutes constitute the same offense
for purposes of double jeopardy. Denton, 938 S.W.2d at 379. The Court in Denton
examined Black and the earlier decisions cited therein. Id. at 379-80. The Denton Court
described Duchac as involving consideration of “‘whether the same evidence is required to
prove’” the offenses, and explained that, “‘[i]f the same evidence is not required, then the
fact that both charges relate to, and grow out of, one transaction, does not make a single
offense where two are defined by statutes.’” Id. at 380 (quoting Duchac, 505 S.W.2d 239).
Building upon Black and Duchac, the Denton Court ultimately announced the following four-
factor test:

[R]esolution of a double jeopardy punishment issue under the Tennessee
Constitution requires the following: (1) a Blockburger analysis of the statutory
offenses; (2) an analysis, guided by the principles of Duchac, of the evidence
used to prove the offenses; (3) a consideration of whether there were multiple
victims or discrete acts; and (4) a comparison of the purposes of the respective
statutes.

Id. at 381. The Denton Court explained that “[n]one of these steps is determinative; rather
the results of each must be weighed and considered in relation to each other.” Id.

Unfortunately, the Denton test has not successfully resolved the “vexatious and
recurring” questions regarding this Court’s double jeopardy analysis. Not only has its
application produced inconsistent results that defy reconciliation, the test itself suffers from
analytical defects and an incongruity with the key constitutional consideration in multiple
punishment cases—that of ascertaining legislative intent. Furthermore, like earlier tests
applied in Tennessee, the Denton test fails to focus sufficiently upon the distinct categories
of multiple punishment claims—unit of prosecution and multiple description.32 Finally, the
Denton test rests upon an uncertain constitutional foundation. An examination of each of the
Denton factors is appropriate to illuminate the problems described generally above.

31
Justice Henry would have adopted the approach set out in the American Law Institute’s Proposed
Official Draft of the Model Penal Code. Black, 524 S.W.2d at 928.
32
See, e.g., Cable, 36 S.W.3d at 43 (applying the Denton test even though the “convictions [did] not
involve multiple or distinct statutes”).

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 E. First Denton Factor

The first Denton factor requires a Blockburger analysis of the statutory offenses. This
analysis entails a comparison of the statutory elements of the offenses “in the abstract.”
Denton, 938 S.W.2d at 381. The first Denton factor is problematic on its face because it
begins with the second step of the Blockburger test— a comparison of the statutory elements.
It omits the threshold step of the Blockburger test—whether the multiple convictions arise
from the same act or transaction.33 Despite this omission, application of the first Denton
factor is straightforward, requiring only a comparison of the statutory elements. The problem
with the first Denton factor arises not from its own application, but rather from its application
in relation to the second factor—the Duchac factor.

F. Second Denton Factor

With respect to application of the Duchac factor, inconsistent analytical approaches
have developed. This Court indicated in Denton, and has often repeated,34 that addressing
a double jeopardy argument requires “an analysis, guided by the principles of Duchac, of the
evidence used to prove the offenses.” Denton, 938 S.W.2d at 381. Addressing the respective
roles of the Blockburger and Duchac factors, the Denton Court stated:

Blockburger . . . provides us with an initial test for determining whether two
offenses are, in the abstract, the ‘same’ for double jeopardy purposes. Duchac
provides criteria by which we analyze each case to determine whether the
offenses are, under the particular circumstances of that case, the “same” for
double jeopardy purposes. Black directs that the analysis begin with
Blockburger but also clearly requires that the analysis proceed to the
circumstances of each individual case.

Id. at 380-81. The Denton Court concluded that “[b]ecause the evidence in this case
consisted of a single attack by Denton on the victim, the State necessarily relied on the same
evidence to establish both the aggravated assault and the attempted voluntary manslaughter.
Thus, application of Duchac indicates that the two offenses are the ‘same’ for double
jeopardy purposes.” Id. at 382.

33
The difficulties arising from this omission will be discussed in depth in connection with the third
Denton factor.
34
See, e.g., State v. Stephenson, 195 S.W.3d 574, 588 (Tenn. 2006); Cable, 36 S.W.3d at 42; State
v. Beauregard, 32 S.W.3d 681, 683 n.3 (Tenn. 2000); State v. Barney, 986 S.W.2d 545, 549 (Tenn. 1999);
Winningham, 958 S.W.2d at 743.

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 In practice, however, Tennessee Courts have not consistently applied the approach
outlined in Denton when analyzing the Duchac factor. For example, in Barney, this Court,
addressing the Duchac factor, stated:

[T]o prove aggravated sexual battery the State must present evidence that the
defendant intentionally touched the intimate parts of the child victim and that
such touching was for the purpose of sexual gratification. Tenn. Code Ann. §§
29-13-501, -504. In contrast, rape of a child can be proven solely by evidence
of sexual penetration, regardless of the motivation for the act. Tenn. Code
Ann. §§ 39-13-501, -522. Thus, different evidence is required to prove each
offense, so the offenses are not the same under Duchac.

Barney, 986 S.W.2d at 550. Rather than focusing upon the circumstances of the case, as
Denton and Duchac require, the Barney Court focused on the statutory elements of the
offenses. See also State v. Thornton, 10 S.W.3d 229, 239 (Tenn. Crim. App. 1999)
(conflating the analysis of the first and second Denton factors). In at least three other cases,
Stephenson,35 Goodwin,36 and Beauregard,37 this Court similarly conflated the analysis of the

35
Addressing the Duchac factor, we stated:

[T]he same evidence is not required to prove both offenses. The defendant’s conviction for
first degree murder required proof of his criminal responsibility for the victim’s death and
proof of the victim’s death. Tenn. Code Ann. § 39-13-202(a)(1) (1989) (premeditated first
degree murder). However, his conviction for conspiracy to commit first degree murder
required proof of an agreement to commit the murder, not necessarily proof of a killing.
Tenn. Code Ann. § 39-12-103(a) (1989) (criminal conspiracy).

Stephenson, 195 S.W.3d at 588.
36
Addressing the Duchac factor, we stated:

In order to prove that the defendant committed criminally negligent homicide, the state had
to show that a death resulted from the defendant’s conduct. On the other hand, for the
felony reckless endangerment conviction, the state has to show that an individual or class
of individuals entered the zone of danger and that the defendant’s conduct placed that person
or persons in imminent danger of death or serious bodily injury. Additionally, the state has
to show that the defendant used a deadly weapon. Because different evidence was needed
to prove each offense, dual convictions would not violate the constitutional prohibitions
against double jeopardy.

Goodwin, 143 S.W.3d at 782.
37
Addressing the Duchac factor, we stated:

(continued...)

-22-
first and second Denton factors. Under the approach utilized in these cases, the Duchac
factor became meaningless and merely redundant of the first Blockburger factor.

More uncertainty than clarity has resulted when Tennessee courts have endeavored
to apply the Duchac factor by reference to the evidence presented at trial, however. For
example, in Denton, the Court addressed circumstances in which the defendant initially cut
the victim with a knife-like object. 938 S.W.2d at 378. The defendant then stabbed the
victim and tried to provoke the victim to fight him. Id. The defendant was convicted of
aggravated assault and attempted voluntary manslaughter. Id. As charged and prosecuted,
the State relied upon the defendant’s use of a deadly weapon, rather than the victim’s
suffering of serious bodily injury, to establish aggravated assault. Id. at 382 n.19.

Applying the Duchac factor, the Denton Court stated simply that “[b]ecause the
evidence in this case consisted of a single attack by Denton on the victim, the State
necessarily relied on the same evidence to establish both the aggravated assault and the
attempted voluntary manslaughter.” Id. at 382. The Court in Denton did not attempt to draw
a distinction between the first cut the defendant inflicted upon the victim and the subsequent
stabbing. Had such a distinction been drawn, the Denton Court arguably could have viewed
the evidence of the stabbing and the defendant’s attempt to provoke a fight with the victim
as evidence different from that used to prove his attempted voluntary manslaughter
conviction. The Denton Court did not separate the evidence in this manner, however.

Similarly, the Court in Winningham refused to parse the evidence presented at trial
when applying the Duchac factor. In Winningham, the Court addressed whether the
defendant’s convictions for arson and contempt by violating an order of protection that
enjoined the defendant “from coming about petitioner [his estranged wife] for any purpose
and specifically from abusing, threatening to abuse petitioner, or committing any acts of
violence upon petitioner upon penalty of contempt” constituted multiple punishments for the
same offense. 958 S.W.2d at 742. The State presented evidence at trial that, after the entry
of the protective order, the defendant threatened to kill the victim, trespassed upon her

37
(...continued)
We next consider the evidence required to establish the offenses of rape and incest. We
recognize that the same evidence was necessary to establish the element of “sexual
penetration” that is essential for both offenses. Since the remaining elements of each
offense differ, however, the evidence required to establish each offense necessarily will
differ in these material respects. For example, to establish the incest charge, the State had
to prove the family relationship between the defendant and the victim. Conversely, to
establish the rape charge, the State had to prove the force or coercion and the lack of
consent. Thus, the evidence at trial underlying the rape and incest convictions was different
and not identical.

Beauregard, 32 S.W.3d at 683 (footnote omitted).

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property, shot at her car, and set fire to her house. Id. at 746. This Court concluded that the
various acts upon which the contempt and arson convictions were based were inseparable,
for purposes of the Duchac factor, weighing in favor of finding a double jeopardy violation.
Id.

In contrast to the approach applied in Denton and Winningham, this Court parsed the
evidence and found support for multiple convictions in another case involving the violation
of a protective order. In Cable, the defendant’s former girlfriend declined to spend the night
with him. As a result, the defendant:

became angry, grabbed . . . her hair, and pushed her head against the car
window. He then pulled a knife and threatened to kill her. [The victim]
pulled to the side of the road and got out of the car. [The defendant] followed
her out of the car and then kicked and stabbed the car.

Cable, 36 S.W.3d at 41. However, the Court did not, as it had in Denton and Winningham,
group these facts under the label of same evidence. Instead, applying the Duchac factor, the
Court concluded that the circumstances of the case depicted three separate incidents, stating:

[E]vidence to establish the first conviction occurred when an argument began
and [the defendant] grabbed [the victim] and pushed her head against the car
window. The evidence of the second conviction was that [the defendant]
produced a knife and threatened to kill [the victim]. Finally, the evidence of
the third conviction was that after [the victim] pulled over and fled from the
scene, [the defendant] vandalized her car by kicking it and striking it with a
knife.

Cable, 36 S.W.3d at 43; see also State v. Lawrence, 995 S.W.2d 142, 145 (Tenn. Crim. App.
1998) (applying the Duchac factor by parsing the evidence presented at trial).

In addition to the difficulty courts have had in determining how precisely to parse the
trial evidence, the Duchac factor has also generated two different approaches as to which
evidence should be considered: conduct or non-conduct evidence. For example, in State v.
Green, 947 S.W.2d 186, 187 (Tenn. Crim. App. 1997), the defendant had been convicted of
driving on a revoked license and driving while prohibited from doing so as a habitual traffic
offender. According to the Court of Criminal Appeals, “Officer Greg Branch, previously
aware that the defendant had been declared an habitual offender, observed the defendant
driving down a residential street. After the defendant turned into a driveway and got out of
the driver’s side of his car, Officer Branch arrested him.” Id. at 190.

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 In applying the Duchac factor, the Court of Criminal Appeals considered only the
defendant’s conduct— driving—in finding that the same evidence had been used to establish
both offenses. Id. The intermediate appellate court made no mention of the non-conduct,
non-overlapping evidence of the two offenses in its analysis of the Duchac factor.
Specifically, to establish the offense of driving on a revoked license, the State had to show
that the defendant had been driving on a public highway: to establish the habitual offender
violation, the State had to show a prior court order barring the defendant from driving. See
id. at 189-90.

Criminal trials often involve both conduct and non-conduct evidence. For example,
in a prosecution for incest and another form of sexual assault, both offenses may be based
on the same evidence with respect to the defendant’s conduct. See Beauregard, 32 S.W.3d
at 683. Nonetheless, the same evidence does not support both offenses because the incest
conviction alone requires proof of the victim’s status—the victim’s familial relationship to
the defendant. Id. We know of no basis for disregarding such non-conduct evidence when
applying the Duchac factor.

As exemplified by the foregoing cases, application of the Duchac factor has fractured
into at least three inconsistent approaches. First, the Duchac factor has been applied in a
manner that merely replicates the Blockburger factor. Second, when considering the trial
evidence, Tennessee courts have differed on whether the evidence should be reviewed
broadly or narrowly. Third, Tennessee courts have differed on whether to consider only
conduct evidence or both conduct and non-conduct evidence.

In addition to the lack of analytical uniformity in its application, the foremost problem
with the Duchac factor is its ineffectiveness in ascertaining legislative intent—the key
consideration in multiple punishment cases. Albernaz, 450 U.S. at 344; Hunter, 459 U.S. at
368; Denton, 938 S.W.2d at 379. Indeed, it is difficult to conceive of how reviewing the
evidence and circumstances of a particular criminal case aids a court in ascertaining
legislative intent with respect to multiple punishments. See Commonwealth v. Vick, 910
N.E.2d 339, 354 (Mass. 2009) (“[J]udicial assessment of the evidence introduced in a single
criminal trial of multiple offenses[] runs the risk of unnecessary intrusion into the legislative
prerogative to define crimes and fix punishments.” (internal quotation marks omitted)).

G. Third Denton Factor

Analytical problems have also arisen in applying the third Denton factor—whether
the offenses involved multiple victims or discrete acts. Denton, 938 S.W.2d at 381. As
already suggested, this factor closely resembles the Blockburger threshold inquiry of whether
the convictions are based on the same act or transaction. The legal discussion of multiple
victims and discrete acts in Denton derives not from cases involving prosecutions under

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different criminal statutes (multiple description claims), but rather from cases involving
multiple counts under a single statute (unit-of-prosecution claims). See Denton, 938 S.W.2d
at 382 (citing State v. Phillips, 924 S.W.2d 662 (Tenn. 1996); State v. Goins, 705 S.W.2d 648
(Tenn. 1986); State v. Irvin, 603 S.W.2d 121 (Tenn. 1980); Grant v. State, 374 S.W.2d 391,
393 (Tenn. 1964); State v. Pelayo, 881 S.W.2d 7 (Tenn. Crim. App. 1994)). As already
explained, unit-of-prosecution claims raise a different question—what is the legislative intent
with respect to the minimum unit of conduct that may be prosecuted as a separate
offense—than that raised by a multiple description claim.

For example, in Goins, even though the defendant received and concealed stolen
goods from a burglar who had victimized at least three persons, the Court concluded that the
statute did not authorize multiple convictions for the receipt and concealment of the stolen
goods. 705 S.W.2d at 650-51. Rather, the relevant statute defined the unit of prosecution
as each separate act of receipt or concealment, without regard to the number of victims. Id.;
see also Lewis, 958 S.W.2d at 738-39 (applying Goins and holding that multiple convictions
for arson were impermissible because the word “structure” in the statute referred to the single
apartment building burned, not the separate apartment units in the building); Irvin, 603
S.W.2d at 121-24 (applying a similar analysis to uphold multiple convictions because “the
elements of the criminal offense” with which the defendant was charged allowed for separate
convictions for second degree murder for each separate victim, even though the victims were
killed in a single traffic incident).

When considering multiple description claims, classifying discrete acts and multiple
victims as merely one of four factors to be weighed in the balance is problematic. If a
defendant’s multiple convictions arise under different statutes and are based on discrete acts
or involve multiple victims, then the double jeopardy protection against multiple punishment
is not implicated. See, e.g., Matey, 891 A.2d at 599 (“Although the alleged drug use violated
the same rule of probation on each occasion, the violations were separate and distinct and
occurred on different dates. For double jeopardy purposes, the two violations cannot be the
‘same offense,’ as they do not even meet the threshold requirement of the Blockburger test
that the violations arise out of the ‘same act or transaction.’”); State v. Saiz, 191 P.3d 521,
529 (N.M. 2008) (“If the acts are sufficiently separated, there is no multiple punishment
concern . . . .”), abrogated on other grounds by State v. Belanger, 210 P.3d 783 (N.M. 2009).

H. Fourth Denton Factor

The fourth Denton factor requires a comparison of the purposes of the respective
statutes. See, e.g., Beauregard, 32 S.W.3d at 684 (“[T]he statutory offenses of rape and
incest have a related but separate legislative purpose and achieve contrasting policy
objectives”). Similarly, the United States Supreme Court has on occasion “reinforced” its
conclusion regarding legislative intent, and the presumption arising from application of the

-26-
Blockburger test, by comparing the purposes of the respective statutes. See, e.g., Albernaz,
450 U.S. at 343 (commenting that the “two conspiracy statutes are directed to separate
evils”). Thus, by focusing upon the abstract purposes of the respective statutes, the fourth
Denton factor provides information pertinent to the crucial consideration—legislative intent.

I. Constitutional Basis for Denton

The most significant shortcoming of the four-factor test is that the Denton Court failed
to explain why article I, section 10 of the Tennessee Constitution requires adoption of a test
different from that applied to challenges based upon the Double Jeopardy Clause of the Fifth
Amendment. See Denton, 938 S.W. 2d at 381 n.15 (predicating the test on article I, section
10 but providing no further explanation). As the final arbiter of the Tennessee Constitution,
this Court may interpret state constitutional provisions more broadly than corresponding
provisions of the United States Constitution. See Seals v. State, 23 S.W.3d 272, 277 (Tenn.
2000). Indeed, this Court has departed38 from federal interpretations of similar constitutional
provisions where appropriate interpretive grounds support a different interpretation. See
State v. Vineyard, 958 S.W.2d 730, 733-34 (Tenn. 1997) (recognizing that textual differences
may support interpreting the Tennessee Constitution differently than the United States
Constitution). However, careful study has revealed no textual, historical, or other basis that
supports interpreting the Double Jeopardy Clause of article I, section 10 as requiring the
adoption of a test different from that applied under the Double Jeopardy Clause of the Fifth
Amendment.

First, as already noted, we have described the Double Jeopardy Clause of article I,
section 10 as co-extensive with the Double Jeopardy Clause of the Fifth Amendment. Harris,
919 S.W.2d at 327. Second, textual differences between the language of article I, section 10
and the Double Jeopardy Clause of the Fifth Amendment are stylistic only.39 Third, the
language now appearing in article I, section 10 was adopted in 1796,40 only five years after

38
See, e.g., State v. Jacumin, 778 S.W.2d 430, 435-36 (Tenn. 1989) (adopting a different standard
for evaluating the sufficiency of an affidavit submitted in support of a request for a search warrant); State
v. Lakin, 588 S.W.2d 544, 549, n.2 (Tenn. 1979) (adopting a different standard under the Tennessee
Constitution for the open fields doctrine).
39
See Black, 524 S.W.2d at 924 (Henry, J., dissenting).
40
See Tre Hargett, Tennessee Blue Book 2009–2010 536 (discussing the adoption of the 1796
Tennessee Constitutions); Jones v. Greene, 946 S.W.2d 817, 823 (Tenn. Ct. App. 1996) (recognizing that
the first Tennessee Constitution was adopted in 1796).

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ratification of the Fifth Amendment.41 It is logical to infer from the similarity of the language
of the two provisions and the temporal proximity of their adoption that the drafters of article
I, section 10 were aware of, and influenced by, the Double Jeopardy Clause of the Fifth
Amendment. We have found no authority, nor has any been provided to us, contravening
such an inference.42 Fourth, no differences between the government of the United States and
the government of Tennessee suggest that article I, section 10 requires the adoption of a test
different from Blockburger. Indeed, the constitutional principle of separation of powers,
which the Blockburger test preserves, appears explicitly in the Tennessee Constitution. See
Tenn. Const. art. II, § 2. Like the United States Supreme Court, this Court has recognized
that “[t]he power to define what shall constitute a criminal offense and to assess punishment
for a particular crime is vested in the legislature.” State v. Burdin, 924 S.W.2d 82, 87 (Tenn.
1996); see also State v. Farner, 66 S.W.3d 188, 200 (Tenn. 2001).

Given the analytical shortcomings of the Denton test and the lack of any textual or
historical basis suggesting that the Double Jeopardy Clause of the Tennessee Constitution
mandates its adoption, we conclude that the time has come to abandon the Denton test. We
adopt the Blockburger same elements test currently utilized by the federal courts and the vast
majority of our sister states. The Blockburger test will enable Tennessee courts to determine
in a more straightforward manner whether multiple convictions under different statutes
violate the state constitutional double jeopardy prohibition against multiple punishment.43

41
Rudstein, 14 Wm. & Mary Bill Rts. J. at 232 (stating that the Fifth Amendment was ratified in
1791 and discussing its adoption).
42
Except for the spelling of the word “offence,” the text of article I, section 10 is identical to the text
of the corresponding provision of the Pennsylvania Constitution. Pa. Const. art. I, § 10 (“No person shall,
for the same offense, be twice put in jeopardy of life or limb”). The Pennsylvania prohibition against double
jeopardy was added to the Pennsylvania Constitution in 1790, six years before the same language appeared
in a Tennessee Constitution and one year before ratification of the Fifth Amendment. See Rudstein, 14 Wm.
& Mary Bill Rts. J. at 223, 233; see also Commonwealth v. Wade, 33 A.3d 108, 118-20 (Pa. Super. Ct. 2011)
(discussing article I, section 10 of the Pennsylvania Constitution). For much of Pennsylvania’s history, its
state constitutional double jeopardy clause was interpreted as applying only “to multiple prosecutions for
capital cases.” Wade, 33 A.3d at 119 (citing Commonwealth v. Henderson, 393 A.2d 1146 (Pa. 1978);
Commonwealth v. Baker, 196 A.2d 382 (1964); McCreary v Commonwealth, 29 Pa. 323 (Pa. 1857)). The
Pennsylvania Supreme Court has stated that “there is no basis for suggesting that the framers of our
Constitution intended to provide greater protection than that afforded under the Fifth Amendment.”
Commonwealth v. Hogan, 393 A.2d 1133, 1138 (Pa. 1978). Pennsylvania applies the Blockburger test to
determine whether offenses are the same for double jeopardy. See Caufman, 662 A.2d at 1052.
43
As we have previously noted, “[s]ome aspect of double jeopardy may arise in many different types
of cases, and the circumstances which give rise to the question are so varied and the fact situations so
numerous that we do not deem it expedient to attempt to formulate a rule to fit all possible situations.”
Black, 524 S.W.2d at 914.

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 J. The Blockburger Test in Tennessee

Under the Blockburger test, Tennessee courts must focus upon ascertaining legislative
intent. If the General Assembly has expressed an intent to permit multiple punishment, no
further analysis will be necessary, and multiple convictions should be upheld against a double
jeopardy challenge. See, e.g., Godsey, 60 S.W.3d at 777; Blackburn, 694 S.W.2d at 936.
Likewise, if the General Assembly has expressed an intent to preclude multiple punishment,44
then no further analysis will be necessary, and improper multiple convictions should be
vacated.45

Where the General Assembly’s intent is not clearly expressed, the Blockburger test
should be applied to determine whether multiple convictions under different statutes punish
the “same offense.” The first step of the Blockburger test is the threshold question of
whether the convictions arise from the same act or transaction. This threshold question
should be answered by reference to the charging instrument and the relevant statutory
provisions. Here it is appropriate to consider whether the charges arise from discrete acts or
involve multiple victims. Thus, what was formerly the third Denton factor now appropriately
has a role to play in the threshold inquiry. If the convictions do not arise from the same act
or transaction, there cannot be a violation of the double jeopardy protection against multiple
punishment. Thus, a threshold determination that multiple convictions do not arise from the
same act or transaction ends the inquiry and obviates the need for courts to further analyze
double jeopardy claims. In this respect, the threshold inquiry serves the interest of judicial
economy, while also providing lawyers and judges with a means of predictably evaluating
the merits of multiple punishment double jeopardy claims.46

44
See, e.g., Tenn. Code Ann. § 39-14-404(d) (2010) (“Acts which constitute an offense under this
section may be prosecuted under this section or any other applicable section, but not both.”); Tenn. Code
Ann. § 39-14-149(c) (2010) (“If conduct that violates this section [a]lso constitutes a violation of § 39-14-104
relative to theft of services, that conduct may be prosecuted under either, but not both, statutes as provided
in § 39-11-109.”); Tenn. Code Ann. § 39-12-204(e) (2010) (“A person may be convicted either of one (1)
criminal violation of this section, including a conviction for conspiring to violate this section, or for one (1)
or more of the predicate acts, but not both.”).
45
Where a Court concludes that the legislature does not intend to permit dual convictions under
different statutes, the remedy is to set aside one of the convictions, even if concurrent sentences were
imposed. Ball v. United States, 470 U.S. 856, 864 (1985) (citing Hunter, 459 U.S. at 368). “The second
conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not
be ignored.” Ball, 470 U.S. at 865.
46
For example, under the test adopted today, the Court of Criminal Appeals in State v. Parham, No.
W2009-02576-CCA-R3-CD, 2010 WL 5271612, at *6 (Tenn. Crim. App. Dec. 10, 2010), could have ended
its analysis at the threshold determination. In Parham, considering the third Denton factor, the intermediate
(continued...)

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 If the threshold is surpassed, meaning the convictions arise from the same act or
transaction, the second step of the Blockburger test requires courts to examine the statutory
elements of the offenses. If the elements of the offenses are the same, or one offense is a
lesser included of the other, then we will presume that multiple convictions are not intended
by the General Assembly and that multiple convictions violate double jeopardy.47 However,
if each offense includes an element that the other does not, the statutes do not define the
“same offense” for double jeopardy purposes, and we will presume that the Legislature
intended to permit multiple punishments.

In nearly all cases involving multiple description claims, application of the
Blockburger test will provide a definitive answer to the question of whether the Legislature
intended to permit multiple convictions under separate statutes. In the rare case where doubt
as to legislative intent remains after application of the Blockburger test, courts may consider
other evidence of legislative intent, including the purposes and history of the relevant
statutes. See Albernaz, 450 U.S. at 342-43; see also Hunter, 459 U.S. at 367 (observing that
in Albernaz, “[w]e might well have stopped at that point [after applying the Blockburger
test],” but “we went on” to determine that “‘[n]othing . . . in the legislative history . . .
disclose[d] an intent contrary to the [Blockburger] presumption’”); Beauregard, 32 S.W.3d
at 683-84 (discussing the distinct purposes of rape and incest statutes); see also State v.

46
(...continued)
appellate court concluded that the offenses “involved discrete acts on the part of the defendant,” with his
conviction of aggravated robbery based on “his intentional or knowing theft of the victim’s cash and jewelry
by violence that was accomplished by the use of a deadly weapon” and his theft conviction “based on his
having knowingly obtained or exercised control over the victim’s vehicle without her consent and with the
intent to deprive her of the vehicle.” Id. Similarly, in State v. Brunner, No. W2008-01444-CCA-R3-CD,
2009 WL 2151822, at *11 (Tenn. Crim. App. July 17, 2009), the Court of Criminal Appeals likely could
have ended its analysis at the threshold based on its statement, made in considering the third Denton factor,
that even though there was only one encounter between the defendant and the victim, there were “arguably
discrete acts” supporting the defendant’s convictions of second degree murder and domestic assault since
the defendant admitted beating the victim with a cane and strangling her. Id.
47
See Tenn. Code Ann. § 40-18-110(g)(1)-(2) (2011 Supp.) (stating second degree murder is a lesser
included offense of first degree murder, and voluntary manslaughter is a lesser included offense of first and
second degree murder); Tenn. Code Ann. § 40-18-110(g)(3) (stating aggravated sexual battery is a lesser
included offense of aggravated rape); Tenn. Code Ann. § 40-18-110(g)(4) (stating sexual battery and sexual
battery by an authority figure are lesser included offenses of rape and aggravated rape); Tenn. Code Ann.
§ 39-15-401(f) (“A violation of this section may be a lesser included offense of any kind of homicide,
statutory assault, or sexual offense, if the victim is a child and the evidence supports a charge under this
section. In any case in which conduct violating this section also constitutes assault, the conduct may be
prosecuted under this section or under § 39-13-101 or §39-13-102, or both.”); see generally Tenn. Code Ann.
§ 40-18-110(f)(1)-(4) (providing a test by which to determine whether an offense is lesser included); State
v. Burns, 6 S.W.3d 453, 466 (Tenn. 1999) (announcing a test by which to determine whether an offense is
lesser included).

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Collins, 166 S.W.3d 721, 726 (Tenn. 2005) (discussing the factors courts traditionally rely
upon to discern legislative intent).

K. Application of the Blockburger Test

Applying the foregoing principles in this case, we first consider whether the
defendant’s dual convictions arose from the same act or transaction. Here, there was only
one victim, and Defendant was charged with committing both offenses on August 30, 2004,
without reference to any specific or discrete acts.48 Thus, the threshold is surpassed, meaning
the potential for a double jeopardy violation exists in this case. The General Assembly has
not expressed its intent either to permit or to preclude dual convictions of reckless homicide
and aggravated child abuse. See Godsey, 60 S.W.3d at 778 (explaining that the Legislature
has designated child abuse and child neglect, but not aggravated child abuse, as lesser
included offenses of homicide). Thus, we must next examine the statutes defining the crimes
of which the defendant was convicted in order to discern legislative intent.

Reckless homicide is statutorily defined as the “[r]eckless killing of another.” Tenn.
Code Ann. § 39-13-215(a) (2003). Aggravated child abuse as charged in this case is
statutorily defined as follows: “A person commits the offense of aggravated child abuse . .
. who commits the offense of child abuse . . . as defined in § 39-15-401 . . . and . . . [t]he act
of abuse . . . results in serious bodily injury to the child . . . .” Tenn. Code Ann. § 39-15-
402(a)(1) (2003). Child abuse as defined in section 401 occurs when “[a]ny person . . .
knowingly, other than by accidental means, treats a child . . . in such a manner as to inflict
injury . . . .” Tenn. Code Ann. § 39-15-401(a) (2003). At the time of this offense, “serious
bodily injury” was defined as including a “substantial risk of death,” “[p]rotracted
unconsciousness,” “[e]xtreme physical pain,” “[p]rotracted or obvious disfigurement,” or
“[p]rotracted loss or substantial impairment of a function of a bodily member, organ or
mental faculty.” Tenn. Code Ann. § 39-11-106(a)(34) (2003).

Obviously, the definitions of reckless homicide and aggravated child abuse differ
markedly. Reckless homicide requires proof of a killing; aggravated child abuse does not.
Aggravated child abuse requires proof that the victim was a “child,” that is, a person less than
eighteen years of age; reckless homicide has no age-based element. Having applied the
Blockburger test, we conclude that the defendant’s convictions of reckless homicide and
aggravated child abuse are not the same offenses for purposes of double jeopardy. Each
offense includes an element different from the other offense. Neither offense is a lesser
included of the other. Accordingly, we conclude that the General Assembly intended to

48
In his written statement, Defendant admitted striking the victim’s head against “the side of the
crib” “about a week” before the offenses in this case occurred. However, the charges relate to Defendant’s
actions on August 30, 2004.

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permit multiple convictions in this context. Thus, we hold that Defendant’s dual convictions
do not offend either the Double Jeopardy Clause of the Fifth Amendment or article I, section
10 of the Tennessee Constitution.

CONCLUSION

Accordingly, we reverse that portion of the Court of Criminal Appeals’ judgment
merging the reckless homicide conviction into the aggravated child abuse conviction and
reinstate the reckless homicide conviction. We agree with the Court of Criminal Appeals that
the trial court erred in sentencing Defendant, and we therefore remand this matter to the trial
court for a new sentencing hearing on both of Defendant’s convictions.49

It appearing that Defendant is indigent, the costs of this matter are taxed to the State
of Tennessee.

___________________________________
CORNELIA A. CLARK, CHIEF JUSTICE

49
Although Defendant committed the instant crimes in August 2004, he was not sentenced until
March 2008, and the trial court sentenced Defendant pursuant to a 2005 amendment to the Sentencing Act.
See Tenn. Code Ann. § 40-35-210 (Supp. 2005). While a defendant committing offenses prior to June 7,
2005, may elect to be sentenced under the 2005 amendment, he must execute a waiver of his ex post facto
protections in order to make such an election. See Act of May 18, 2005, ch. 353, sec 18, 2005 Tenn. Pub.
Acts 788, 796. Defendant did not execute such a waiver prior to his sentencing. Accordingly, the trial court
erred in sentencing Defendant under the 2005 amendment. Unless Defendant chooses to execute such a
waiver on remand, see State v. Banks, No. M2007-00545-CCA-R3-CD, 2008 WL 1699440, at *7 (Tenn.
Crim. App. Apr. 11, 2008), the trial court may, on resentencing, consider as enhancement factors: (1)
Defendant’s prior convictions, if any; (2) facts admitted by Defendant; and (3) facts reflected in the jury’s
verdict as to each crime. See Blakely v. Washington, 542 U.S. 296, 303-04 (2004); State v. Gomez, 239
S.W.3d 733, 740 (Tenn. 2007). Whether Defendant serves his sentences concurrently or consecutively must
be determined pursuant to Tennessee Code Annotated section 40-35-115 (2010).

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