State v. Bondurant3/20/1998
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First, to enable the defendant to prepare for and make his defense to the specific charge; second, to protect him from double jeopardy by individualization of the issue, and third, so that the jury's verdict may not be a matter of choice between offenses, some jurors convicting on one offense and others, another.
Id. at 803. In State v. Shelton, 851 S.W.2d 134 (Tenn. 1993), the supreme court emphasized the third reason as the most important, pointing out that a unanimity instruction, as given in this case, is necessary "to ensure that the jury deliberates over the particular charged offense, instead of creating a `patchwork verdict' based on different offenses in evidence." Id. at 137 (citations omitted).
In our view, the case before us does not warrant application of the rule that requires the state to "elect the particular offenses for which convictions are sought." Shelton, 851 S.W.2d at 137. The case does not fit within the rubric to which the rule of Burlison-Shelton normally applies. The indictment alleges a single offense, and the proof reflects only a single act of arson. There was no other "particular offense" alleged or proved. It is true the arson statute quoted above proscribes conduct through the use of alternative verbs, or theories of offending, but in Tennessee the need for election is not implicated by the statutory use of proscriptive terms in the disjunctive. See Tenn. Code Ann. § 40-18-112 (1990) (Where statute provides "different means" by which an offense may be committed, the jury may convict even if it is "uncertain . . . by which of the means charged the offense was committed.") and Tenn. Code Ann. § 40-13-206 (1997) ("When the offense may be committed by different forms, by different means or with different intents, such forms, means or intents may be alleged in the same count in the alternative."). See also Schad v. Arizona, 501 U.S. 624, 649, 111 S. Ct. 2491, 2506 (1991) ("As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission.") (Scalia, J., Concurring). In the case at bar, the proof showed that the offense was committed, if at all, under only one theory and by only one act, despite the other possible theories afforded by the statute. All of the proof demonstrates that if the defendant contravened the statute, he did so through the more vicarious actions of aiding, counseling, or procuring the arson, rather than through the more direct actions of setting fire, burning, or causing the house to burn. In this case, election of neither theories nor acts is required.
V. SEARCH WARRANT
The defendant argues that the trial court erred by finding he lacked standing to contest the search warrant executed at his parents' residence in Westpoint. Initially, he asserts that the prosecution is estopped from arguing that he lacked standing to challenge the search warrant because the warrant and the attached affidavit included assertions that the defendant occupied the Westpoint residence. Specifically, the affiant requested a warrant to search "the person and premises of the said Pete and Pat Bondurant above described," and the defendant contends that the state is bound by its admission of his standing to contest the search warrant. In support of this proposition, the defendant cites Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642 (1981), State v. Moore, 775 S.W.2d 372 (Tenn. Crim. App. 1989), and State v. White, 635 S.W.2d 396 (Tenn. Crim. App. 1982).
Contrary to the defendant's assertion, these cases stand for the proposition that if the state fails to raise the issue of standing in the trial court, but
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