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State v. Johnson8/22/2001
m, the prosecution must elect the particular offense as charged in the indictment for which the conviction is sought." State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999). This requirement, which is grounded in part upon the Tennessee Constitution, has been reaffirmed and enforced by this Court on numerous occasions. See State v. Kendrick, 38 S.W.3d 566, 568 (Tenn. 2001); 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 paramount importance of the election requirement is that it protects a defendant's right to a unanimous jury verdict under the Tennessee Constitution by ensuring that jurors deliberate over and render a verdict based on the same offense. State v. Brown, 992 S.W.2d at 391. As this Court has observed:
here should be no question that the unanimity of twelve jurors is required in criminal cases under our state constitution. A defendant's right to a unanimous jury before conviction requires the trial court to take precautions to ensure that the jury deliberates over the particular charged offense, instead of creating a "patchwork verdict" based on different offenses in evidence. State v. Shelton, 851 S.W.2d at 137 (citations omitted).
The election requirement serves other interests as well: it enables a defendant to prepare for a specific charge; it protects a defendant against double jeopardy; it enables the trial court to review the weight of the evidence in its capacity as thirteenth juror; and it enables the appellate court to review the legal sufficiency of the evidence. See State v. Brown, 992 S.W.2d at 391.
The majority asserts that the election doctrine has often been applied in cases involving multiple offenses occurring over a period of time. See State v. Walton, 958 S.W.2d at 727. While this assertion may be correct, it is equally significant to note that we have never limited the election doctrine to cases involving multiple charges. See, e.g., Kendrick, 38 S.W.3d at 568; Brown, 992 S.W.2d at 389. Nor have we limited the election doctrine to cases in which the indictment alleges that the charged offense or offenses occurred over a certain period of time. See Kendrick, 38 S.W.3d at 568. In sum, the concern for jury unanimity and the requirement for an election may arise in any case in which the defendant has been charged with an offense and the evidence indicates that more than one offense was committed.
MULTIPLE OFFENSES
The majority properly recognizes that the election issue in this case turns on the question of whether there was evidence of multiple offenses of sexual battery. The apparent rationale for the majority's conclusion that there was only one offense is twofold: first, that the relevant statutory provisions allow evidence of multiple acts of "sexual contact" to be used in proving a single offense of sexual battery; and second, that an analysis of the relevant factors in State v. Phillips, 924 S.W.2d 662 (Tenn. 1996) establishes that only one offense of sexual battery was committed. The majority is wrong on both counts.
Statutory Analysis
As the majority discusses, the offense of "sexual battery" is statutorily defined as an "unlawful 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 k
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