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State v. Johnson8/22/2001
d 7 (Tenn. Crim. App. 1994), and several unpublished Court of Criminal Appeals opinions that were decided before our decision in Phillips. The reliance on Pelayo is further misplaced in that it involved the offense of aggravated assault, the statutory provisions for which do not delineate or mention specific areas of the victim's body. See State v. Williams, 730 P.2d at 1199. Despite the absence of controlling authority in Tennessee, the majority ignores similar cases decided by courts in our sister jurisdictions and instead criticizes this dissent for its reference to those cases.
CONCLUSION
Accordingly, since in my view there was evidence of two offenses of sexual battery, it follows that under Tennessee law the prosecution was required to elect which offense it relied upon for the sexual battery conviction. As we noted in State v. Shelton, a failure to elect implicates the constitutional right to a unanimous verdict and is, therefore, subject to constitutional harmless error analysis. 851 S.W.2d at 138. I would initially emphasize that the prosecution's duty to elect is well-established and that this Court has repeatedly stated that the purpose of election is to preserve the constitutional right to a unanimous jury verdict. In this case, the jury was presented with two offenses of sexual battery based on two acts of sexual contact that occurred in two separate and distinct statutorily protected areas of Smith's body. Because of the State's failure to elect the offense it relied upon for the conviction, it cannot be determined whether the jury was unanimous in its verdict. The State has, therefore, failed to show that the error was harmless beyond a reasonable doubt.
In my view, the majority has misapplied existing precedent and statutory law and has created a muddled analysis that, as applied to the offense of sexual battery, permits a defendant to commit numerous acts of sexual contact against a victim with no criminal consequence. I would hold that there was evidence from which the jury could reasonably find two offenses of sexual battery and that the prosecution was therefore required to elect which offense it relied upon to establish the conviction. Moreover, the prosecution's failure to follow this well-established requirement denied the defendant his constitutional right to a unanimous jury verdict in violation of article I, § 16 of the Tennessee Constitution and requires a new trial on this offense. Finally, I am authorized to state that Justice Holder joins in this concurring and dissenting opinion.
E. RILEY ANDERSON, CHIEF JUSTICE
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