A pro tem prosecutor, after he looked at the evidence, made a motion to dismiss the criminal case against a Johnson City police officer charged with domestic assault due to a lack of evidence.

David E. Smith, 46, also will have the arrest and charge erased from his record.

Assistant District Attorney General Kent Chitwood, a prosecutor from Nashville appointed to handle the case, told Unicoi County Judge David Shults — appointed to hear the case — that the state wanted to dismiss the case without prejudice.

“After talking to some of the parties, including the defense attorney, the state would like to dismiss this case without prejudice so if additional evidence comes to light it could be brought back in the future,” Chitwood said. “But at this point, based on everything I know, the state believes that’s prudent. It’s my understanding that the victim is going to endeavor to get additional evidence and at that point we’ll re-evaluate.”

Smith’s attorney, Donna Bolton, said after the hearing that her client had prevailed, just as he said he would.

“He knew that he was innocent and he knew once he had his day in court the result would be exactly what it was,” Bolton said.

In a public hearing on Tuesday, Smith and his former girlfriend — Jadea Burkey, who also is a Johnson City police officer — squared off from the witness stand about the allegations from Oct. 23 when she accused him of assaulting her and putting a gun to her head with threats to kill her.

While those charges had just been dismissed by the state, there was a hearing on a pending order of protection in which Burkey wanted Smith ordered to stay away from her.

In that hearing, Burkey said Smith assaulted her, put a gun to her head and threatened her life. She eventually was able to leave their residence and she drove to JCPD headquarters where she reported the incident. Smith was arrested later that night.

Burkey’s attorney, Chris Rogers, said he will review Shults’ order and what he believes is additional and relevant evidence of the alleged assault.

“Yesterday my client and I were given screenshots of text messages that appeared to be incomplete,” Rogers said. “As a result, we requested more time to ensure the messages were completed and not taken out of context. We also requested that the order of protection be sent to Circuit Court so that we could take advantage of formal discovery. Both requests were unfortunately denied. She has the ability to appeal the order of protection and get a completely new hearing in Circuit Court. If she chooses that option, I remain committed to fighting for her like each and every one of my clients.”

While the charge was dismissed and will be expunged, Smith’s suspension from the JCPD remains in effect until the completion of an internal investigation.

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