State v. Johnson8/22/2001
We granted this appeal to consider two issues: whether the evidence introduced at trial indicated two separate offenses of sexual battery such that the trial court erred in failing to require the State to make an election at the close of the proof; and (2) whether the trial court erred in failing to give the jury an enhanced unanimity instruction. The Court of Criminal Appeals found that no election was required because the proof did not establish two separate offenses but concluded that the trial court erred by failing to give an enhanced unanimity instruction. However, the Court of Criminal Appeals found the error harmless and affirmed the defendant's conviction. After a careful and thorough review of the record and relevant authority, we agree with the Court of Criminal Appeals that the proof in this case indicates only one offense, with the two touches establishing one element, sexual contact, of the charged offense, sexual battery. Therefore, we conclude that the trial court did not err in failing to require an election. However, we do not agree that the trial court erred in failing to give the jury an enhanced unanimity instruction. Accordingly, we affirm the judgment of the Court of Criminal Appeal on the separate grounds stated.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed
Frank F. Drowota, III, J., delivered the opinion of the court, in which Adolpho A. Birch, Jr. and William M. Barker, JJ.joined. E. Riley Anderson, C.J. filed a dissenting opinion in which Janice M. Holder, J., joined.
OPINION
Background
On December 27, 1997 at approximately 11:45 a.m., the victim, Wendy Smith, a driver for Brown's Taxi, picked up the defendant Robert Derrick Johnson at "The Pantry" in Shelbyville, Tennessee. The defendant put his jacket in the back seat of the taxi, but rode in the front seat with the victim. The defendant asked the victim to drive him to Wartrace. They arrived in Wartrace, but the defendant was unable to direct Smith to his friend's house, and they became lost. Eventually, the defendant told Smith his leg was hurting, and he asked her to stop the taxi. Smith pulled over, and the defendant got into the back seat of the taxi. Smith resumed driving, following the defendant's directions. Smith continued to drive, but she expressed concern because the area was remote and the road was hilly, curvy, and snow-covered.
Despite her concerns, Smith continued to drive, following the defendant's directions. At some point as she was driving, the defendant reached forward, wrapped a coat hanger around her neck, and demanded to know how much money she had. When Smith replied that she had $57.50, the defendant insisted that she give him the money. Smith immediately handed the defendant the bank bag containing money. Because she was having trouble breathing, Smith asked the defendant to loosen the coat hanger and begged him not to kill her because she wanted to see her children again. The defendant loosened the coat hanger, but he did not remove it. Eventually, the defendant removed the coat hanger from Smith's neck, climbed into the front seat of the taxi, and continued to give driving directions.
The defendant repeatedly asked whether Smith intended to report him, and she reassured him that she would not and that she would give the police an incorrect description. Upon hearing this, the defendant said that he would let Smith go, but, he reached over, rubbed Smith's breast and between her legs over her clothing, and asked if she "had ever been with a black man." When he touched Smith between her legs, he realized that she had urinated on herself, and he stopped touching her. Smith
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