IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1998 SESSION
FILED
STATE OF TENNESSEE, ) August 6, 1999
) C.C.A. No. 02C01-9708-CR-00319
Appellee, ) Cecil Crowson, Jr.
) Shelby County Appellate Court Clerk
V. )
) Honorable Arthur T. Bennett, Judge
)
ANTONIO M. KENDRICK, ) (Aggravated Rape)
)
Appellant. )
DISSENTING OPINION
I write separately to address whether the trial court erred by failing to
require the state to elect the proof it relied upon for a conviction. W hile I concur in
the results of the remaining issues addressed by the majority, in my view, the state's
failure to make an election qualified as plain error. On that basis, I would reverse
the judgment of conviction and remand for a new trial.
The trial court has a duty to require the state, at the close of its case-
in-chief, to elect which proof it relies upon for a conviction where evidence of more
than one instance of sexual misconduct has been presented to the jury. Jamison v.
State, 94 S.W. 675 (Tenn. 1906); Burlison v. State, 501 S.W.2d 801 (Tenn. 1973);
State v. Shelton, 851 S.W.2d 134, 136 (Tenn. 1993). An election by the state is
required under such circumstances regardless of whether the defendant makes a
demand. Burlison, 501 S.W.2d at 804. The trial court has a duty to properly instruct
the jury so that the verdict of each juror is "united on the one offense." Id. at 804.
An election serves three fundamental purposes:
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. The failure of the trial court to require an election or to properly instruct
the jury as to the state's election constitutes plain error. State v. Walton, 958
S.W.2d 724, 727 (Tenn. 1997); State v. Clabo, 905 S.W.2d 197, 204 (Tenn. Crim.
App. 1995)(citing State v. Ogle, 666 S.W.2d 58, 60 (Tenn. 1984)). In Clabo, this
court found plain error because the trial court failed to request an election of proof
regarding the rape of a child victim. Judge Peay, writing for this court, reasoned as
follows:
The State provided proof that the defendant performed
oral and anal sex on the victim. These are two separate
acts, each constituting penetration under the charge of
aggravated rape. Yet, the defendant was only charged
with one count of aggravated rape. The court presented
to the jury the proof and allegations of two acts and
asked the jury if the defendant could be convicted of one
count of this act. Therefore, some jurors could have
concluded that the defendant was guilty based upon the
proof of the oral sex and not the anal sex, and some
jurors could have concluded that the defendant was
guilty based upon the proof of the anal sex and not the
oral sex. The defendant may have been convicted by a
jury of less than twelve (12). Since all twelve (12)
members did not have to find the same facts or draw the
same conclusions, we find that a grave constitutional
error was committed in that the defendant may have
been denied a unanimous jury verdict.
Clabo, 905 S.W.2d at 205.
The facts here are similar. There was a single count indictment for
aggravated rape. The victim testified that the defendant was armed with a weapon
and forced her to perform fellatio on him for five to ten minutes. As he drove to a
second location, he demanded that she continue to perform fellatio. Upon their
arrival, the defendant forced the victim to engage in sexual intercourse. The jury
heard evidence of at least two separate acts of unlawful penetration. Each act
spanned several minutes and involved different areas of the victim's body and
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differing physical positions. Each occurred at a different location. Although unclear
as to the amount of time that elapsed between the two incidents, the record does
demonstrate that the defendant talked and argued with the victim during that time.
He threatened her, insisted that she prove that she was menstruating, and placed a
condom on his penis. Before penetrating the victim, the defendant stated, "[T]his is
to make up for what you did to me ...." See State v. Phillips, 924 S.W.2d 662, 665
(Tenn. 1996).
In Phillips, our supreme court observed that "[e]ach act ... is capable of
producing its own attendant fear, humiliation, pain, and damage to the victim. Each
type of penetration requires a purposeful act on the part of the perpetrator." Id. at
665. Here, the victim described both acts in detail. This was not an instance in
which the state elicited detailed information about one act and only general
allegations of other acts. See Clabo, 905 S.W.2d at 204-05. The trial court
instructed the jury that the definition of unlawful penetration included both fellatio
and sexual intercourse but did not provide an augmented unanimity instruction. It
neither required the state to elect nor instructed the jury to determine which act of
penetration could be considered for a conviction. As in Clabo, it is impossible to
determine which sexual act the jurors may have relied upon in reaching their
verdicts. "[E]ach juror was left to choose independently the act(s) of abuse upon
which to base a verdict." Walton, 958 S.W.2d 727-28.
I should point out that the closing arguments were not transcribed and
are not included in the record for our review. A divided panel of this court has held
that a prosecutor's closing argument may "effectively" serve as an election. State v.
William Dearry, No. 03C01-9612-CC-00462, slip op. at 25 (Tenn. Crim. App., at
Knoxville, Feb. 6, 1998), app. denied, (Tenn., Jan. 19, 1999). While that holding
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might support the view of the majority in that the defendant has failed to provide an
adequate record for the disposition of the issue, I do not believe that the trial courts
should be relieved of the duty to require an election or to instruct the jury that there
must be a unanimous verdict on a single charge. Here, the instructions included no
mention of any election by the state, formal or otherwise. The requirement of an
election is "fundamental, immediately touching the constitutional rights of an
accused...." Burlison, 501 S.W.2d at 804. In consequence, I would reverse and
remand for a new trial.
_____________________________
Gary R. Wade, Presiding Judge
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