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State v. Johnson8/22/2001
causing injury, fear, or physical contact. Id. The Pelayo court noted that the General Assembly did not intend for a defendant to be punished separately "for each blow or injury." Id.
Under existing Tennessee law, therefore, dual convictions for the conduct at issue in this case would be constitutionally prohibited. That being the case, there is no legal or logical reason to hold that these facts establish two offenses for purposes of election.
While we affirm the Court of Criminal Appeals' conclusion that the proof in this case indicates only one criminal offense, we cannot agree with the Court of Criminal Appeals that the trial court erred in failing to provide the jury with an enhanced unanimity instruction. The record reflects that the jurors were instructed to render a unanimous verdict. The record does not reflect that the defendant requested an enhanced unanimity instruction. Moreover, the evidence indicated only one offense, so there was no need for such an instruction. Finally, such an instruction is not required even in cases where the proof does indicate more than one offense. The election requirement itself alleviates any unanimity concerns. Those states which require an enhanced unanimity instruction appear to rely upon it instead of, not in addition to, an election requirement. See State v. Greene, 623 A.2d 1342, 1344-45 (N.H. 1993); State v. Weaver, 964 P.2d 713, 720 (Mont. 1998). Accordingly, we do not agree with the Court of Criminal Appeals that the trial court erred by failing to give an enhanced unanimity instruction.
Conclusion
Having concluded that the trial court did not err either by failing to require the State to make an election or by failing to give the jury an enhanced unanimity instruction, we affirm, on the separate grounds stated, the judgment of the Court of Criminal Appeals. It appearing that the defendant is indigent, costs of this appeal are taxed to the State.
E. Riley Anderson, C.J., with whom Janice M. Holder, J., joins, concurring in part and dissenting in part.
I fully concur in the majority's affirmance of the defendant's convictions and sentences for aggravated robbery and false imprisonment. The majority, however, has erroneously concluded that the prosecution was not required to make an election of offenses and that the trial court did not err in failing to give an enhanced instruction to ensure that the jury' s verdict was unanimous as to the offense of sexual battery. The majority's holding is based on its view that there was evidence of only one offense of sexual battery, notwithstanding the fact that the defendant committed two separate and distinct acts of sexual contact against the victim. In reaching this conclusion, 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 therefore dissent.
In my view, there was evidence from which the jury could reasonably find two offenses of sexual battery and 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.
ELECTION OF OFFENSES
As the majority recognizes, this Court has long and consistently held that "when the evidence indicates [that] the defendant has committed multiple offenses against a victi
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