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State v. Johnson8/22/2001
asked to stop and use the restroom, but the defendant would not allow it, and he jerked the steering wheel when Smith tried to stop at a store, telling Smith not to do anything stupid. He reached beneath his shirt, and Smith testified that she did not know whether he had "a gun or what."
Eventually, the defendant threw the coat hanger out the window and told Smith to drive him to Shelbyville Central High School. She complied, and after the defendant had gotten out of the taxi, Smith asked the dispatcher at Brown's Taxi to call the police. Smith drove back to the taxi station where she met the police and reported the incident. Smith had seen the defendant before the incident and was able to identify him from police photographs.
The defendant was arrested and indicted for aggravated robbery, aggravated kidnapping, and aggravated sexual battery. At trial, Smith identified the defendant as the person who robbed her and touched her breast and between her legs. The defendant admitted that he robbed Smith, but he denied touching her. The jury found the defendant guilty of aggravated robbery, false imprisonment, and sexual battery.
The Court of Criminal Appeals affirmed the defendant's convictions and sentences. With regard to the sexual battery conviction, the intermediate court held that the proof in this case indicated only one offense of sexual battery, thereby eliminating the need for the State to make an election of offenses at the close of the proof. The intermediate court further held, however, that the trial court erred in failing to give an enhanced unanimity instruction, but found that the error was harmless beyond a reasonable doubt.
Thereafter, we granted the defendant's application for permission to appeal to determine whether the facts of this case establish two separate offenses so that the trial court erred by failing to require the State to elect the facts upon which it was relying to establish the offense of sexual battery; and whether the trial court erred in failing to give the jury an enhanced unanimity instruction.
Election of Offenses
This Court has consistently held that the prosecution must elect the facts upon which it is relying to establish the charged offense if evidence is introduced at trial indicating that the defendant has committed multiple offenses against the victim. See State v. Kendrick, 38 S.W.3d 566, 568 (Tenn. 2001); State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999); State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997); Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996); State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993). The election requirement safeguards the defendant's state constitutional right to a unanimous jury verdict by ensuring that jurors deliberate and render a verdict based on the same evidence. Brown, 992 S.W.2d at 391.
The election requirement was first adopted in Jamison v. State, 117 Tenn. 58, 94 S. W. 675 (1906). This Court in Jamison held that proof of all sexual acts allegedly committed by the defendant against the victim could be admitted into evidence, but to avoid the prosecution of uncharged sex crimes, the State was required to elect the specific act upon which it was relying to obtain a guilty verdict. Jamison, 94 S. W. at 676. Since Jamison, the election requirement has been applied almost exclusively in the sex crimes context, and specifically, when the defendant is alleged to have committed a series of sexual acts over a lengthy period of time against young children who are unable to identify the exact date on which any one act was perpetrated. See, e.g., Brown, 992 S.W.2d at 389 (finding that the trial court erred in failing to require an election when the defendant
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