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State v. Johnson8/22/2001
was charged with rape of a child in a one count indictment that covered a six-month time frame, but the proof showed that at least ten instances of digital penetration occurred during the six months alleged, five occurring on one day and five others on different days); Walton, 958 S.W.2d at 724 (finding an election should have been required where sexual offenses were charged in a multi-count, open-ended indictment and where the child victim testified she was raped by the defendant or that he performed cunnilingus on her on a daily basis for over a year); State v. Burlison, 501 S.W.2d 801, 804 (Tenn. 1973) (finding an election should have been required where the defendant was charged with having "carnal knowledge" of the victim on "divers days between the summer of 1964 and August, 1969," but the proof did not show any particular date).
In 1994, this Court overruled Jamison to the extent it had established a "sex crimes exception" that permitted proof of all sexual acts allegedly committed by the defendant against the victim, whether charged or uncharged. See State v. Rickman, 876 S.W.2d 824, 829 (Tenn. 1994) (overruling Jamison). Nonetheless, we recognized in Rickman that out of necessity indictments often charge general time frames that encompass several months. In those instances, we concluded that the State may introduce evidence of sex crimes allegedly committed against the victim during the time frame charged in the indictment, but, at the close of the proof, the State must elect the facts upon which it is relying for conviction. Id.
However, as the Court of Criminal Appeals recognized, the defendant's right to a unanimous jury verdict is not implicated in this case because the State charged only one offense and offered proof of only one offense - sexual battery. The facts of this case are significantly different from previous decisions applying and discussing the election requirement. Here, the indictment alleged that the offense occurred on a specific date certain. The proof did not show that the defendant had committed a series of sexual acts over a lengthy period of time. As the Court of Criminal Appeals stated, " t is apparent from the evidence that all of this happened quickly and virtually simultaneously."
In our view, the defendant's assertion that the proof in this case established multiple offenses is simply incorrect. At most, the proof in this case established two touches that constitute one element of sexual battery, the offense charged. Sexual battery is defined as follows:
nlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following circumstances:
(1) Force or coercion is used to accomplish the act;
(2) The sexual contact is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the contact that the victim did not consent;
(3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless. . . . Tenn. Code Ann. § 39-13-505.
Simply stated, the elements of sexual battery are (a) sexual contact; (b) with a victim by the defendant or the defendant by the victim; (c) accompanied by one of the circumstances listed as 1-3 above. See State v. Hammonds, 30 S.W.3d 294, 298 (Tenn. 2000) (listing the elements of aggravated assault); State v. Ducker, 27 S.W.3d 895, 889 (Tenn. 2000) (listing the elements of reckless killing of a child). One element of the offense, "sexual contact," is further defined as:
the intentional touching of the victim's, the defendant's, or any other person's intimate parts, or the intentional t
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