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State v. Johnson8/22/2001
eed the defendant was guilty of the single offense charged even if some found criminal responsibility and others based their verdict on direct liability. See also State v. Suttles, 30 S.W.3d 252, 262 (Tenn. 2000) (holding that the prosecution need not elect the proof upon which it is relying to establish the (i)(5) aggravating circumstance which itself has alternative prongs). Likewise, in the present case, so long as the jurors agreed that the defendant engaged in sexual contact on the date charged, the defendant was afforded his constitutional right to juror unanimity. This is true even though some of the jurors may have based their finding on one touching, and others may have based their finding on the other touching.
Also relevant to the analysis in this case is State v. Phillips, 924 S.W.2d 662 (Tenn. 1996), a case in which the defendant was convicted of multiple sexual offenses. Before this Court, Phillips alleged that the multiple convictions violated his constitutional protection against double jeopardy because he had committed a single criminal offense. In determining whether the defendant's multiple convictions arose from a single criminal offense we considered the following factors: (1) the nature of the acts committed by the defendant; (2) the area of the victim's body invaded by the defendant's sexually assaultive behavior; (3) the time elapsed between the defendant's discrete acts of sexually assaultive conduct; (4) the defendant's intent in the sense that the lapse of time may indicate a newly formed intent to again seek sexual gratification or inflict abuse; and (5) the cumulative punishment. Id. at 665. In Phillips, we determined that the multiple acts of penetration, distinct in nature and separated in time, constituted discrete offenses so that the prosecution could constitutionally seek multiple convictions.
In contrast, application of the Phillips factors does not militate in favor of a finding of two offenses in this case. The nature of the act is touching. Two parts of the victim's body were touched. There were no discrete acts of sexually assaultive conduct, such as occurred in Phillips. Little or no time elapsed between the touching; therefore, no evidence exists to indicate a newly formed intent to again seek sexual gratification. The proof showed only one instance of sexual contact, whereas the proof in Phillips showed separate acts of penetration. As to cumulative punishment, the way in which sexual battery is defined by statute suggests that the General Assembly intended to punish for each instance of sexual contact, not for each separate touch that may comprise one instance of sexual contact. Applying the Phillips factors, we conclude that the proof in this case indicates only one offense.
Were we to hold that the prohibited touching in this case which occurred within a matter of minutes establishes two separate offenses, then a defendant involved in an assault could be charged, convicted, and punished for each individual blow struck, even if the entire assault occurs in only a matter of minutes. The Court of Criminal Appeals has already rejected such a result in State v. Pelayo, 881 S.W.2d 7 (Tenn. Crim. App. 1994), where the defendant was convicted of two counts of aggravated assault for cutting the victim first on the arm, and again, a few moments later, on the leg as she attempted to escape. The Court of Criminal Appeals concluded that the defendant had committed only one offense, stating: " hile the assaults were separated by time and place, . . . they coalesced into an `unmistakable single act,' though separated by a few seconds and feet." Id. at 13. In so holding the intermediate court noted that the aggravated assault statute focuses on the act of
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