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State v. Johnson8/22/2001
ouching of the clothing covering the immediate area of the victim's, the defendant's, or any other person's intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification. Tenn. Code Ann. § 39-13-501(6) (emphasis added).
Significantly, the statute uses the plural "parts" rather than the singular "part." Therefore, the statute contemplates that the element of "sexual contact" may be established by proof that the defendant touched more than one of the areas included within the definition of "intimate parts." Simply stated, the element "sexual contact" was proven in this case by the victim's testimony that the defendant intentionally touched her breast and her groin area for the purpose of sexual arousal or gratification. This proof established one element of the charged offense, not two separate offenses, and the trial court did not err in refusing to require an election.
The Court of Criminal Appeals has correctly and consistently recognized that the sexual battery statute is aimed at preventing sexual contact which may consist of more than one touch. Addressing the issue in an unpublished opinion, the Court of Criminal Appeals aptly explained the significant point:
The gravamen of the [ ] sexual battery statute is physical sexual contact for the purpose of sexual arousal or gratification. Unlike the definition of penetration, the definition of this offense does not contain physical acts of sexual contact listed separately and alternatively. Indeed, the language more closely resembles the general language used to define aggravated assault in [State v.] Pelayo [881 S.W.2d 7 (Tenn. Crim . App. 1994)]. State v. Bain, No. 03C01-9311-CR-00384, 1995 WL 495932 (Tenn. Crim. App., Knoxville, Aug. 21, 1995) (emphasis added) (concluding that three touches of various parts of victim's body during one brief encounter constituted one offense of aggravated sexual battery); see also State v. Perry Hinkle, No. 02 C01-9603-CR-00076, 1996 WL 601726 (Tenn. Crim. App., Jackson, Oct. 22, 1996) (upholding defendant's conviction for one count of aggravated sexual battery for touching child on breasts and vagina during one encounter).
If the entire instance of sexual contact occurs quickly and virtually simultaneously, then only one offense has occurred, even if more than one touching has occurred. Accordingly, the prosecution need not elect which touch it is relying upon to establish sexual contact - an element of the charged offense - sexual battery. See State v. Adams, 24 S.W.3d 289, 297 (Tenn. 2000) ("Our cases have not required that a jury unanimously agree as to facts supporting a particular element of a crime so long as the jury agrees that the appellant is guilty of the crime charged.")
This conclusion is also supported by several other prior decisions of this Court. For example, we have previously held that a general verdict of guilt of first degree murder poses no constitutional problems even though some jurors may have convicted based on proof of premeditation and some jurors may have convicted based on proof of felony murder. See, e.g., State v.Cribbs, 967 S.W.2d 773, 787 (Tenn. 1998). The crucial point is all jurors unanimously agreed that the defendant was guilty and had committed the single offense charged even if some found premeditation and others found commission during the course of a felony. Likewise, in State v. Lemacks, 996 S.W.2d 166, 171 (Tenn. 1999), we held that the prosecution was not required to elect criminal responsibility or direct liability when seeking a conviction for the single offense charged, driving under the influence. Again, the crucial point is all jurors unanimously agr
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