           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE

                            JULY 1999 SESSION
                                                       FILED
                                         M1998-00789-CCA-R3-CD
STATE OF TENNESSEE,                 *                 March 17, 2000
                                         No. 01C01-9808-CR-00337

            Appellee,               *                Cecil Crowson, Jr.
                                         DAVIDSON COUNTY
                                                    Appellate Court Clerk
V.                                  *    Hon. Steve Dozier, Judge

GARY J. GREER,                      *    (Aggravated Sexual Battery)

            Appellant.              *


For Appellant:                           For Appellee:
Jeffrey A. DeVasher                      Paul G. Summers
Assistant Public Defender                Attorney General and Reporter
1202 Stahlman Building                   425 Fifth Avenue North
Nashville, TN 37201                      Nashville, TN 37243-0493

Laura C. Dykes                           Elizabeth T. Ryan
Assistant Public Defender                Assistant Attorney General
1202 Stahlman Building                   425 Fifth Avenue North
Nashville, TN 37201                      Nashville, TN 37243-0493

James P. McNamara                        Patty Ramsey
Assistant Public Defender                Assistant District Attorney General
1202 Stahlman Building                   Washington Square, Suite 500
Nashville, TN 37201                      222 2nd Avenue North
                                         Nashville, TN 37201-1649


OPINION FILED:


AFFIRMED


NORMA MCGEE OGLE, JUDGE
                                               OPINION

                 The appellant, Gary J. Greer, appeals his conviction by a jury in the
Davidson County Criminal Court of aggravated sexual battery. Pursuant to the

appellant’s conviction, the trial court imposed a sentence of fifteen years

incarceration in the Tennessee Department of Correction. On appeal, the appellant
presents the following issues for our consideration: (1) Whether the trial court

erroneously required the jury to resume deliberations when, contrary to the trial

court’s instructions, the jury returned verdicts of guilt on both counts of the
appellant’s indictment; (2) Whether the trial court erred in accepting the jury’s

subsequent verdict of guilt of aggravated sexual battery; and (3) Whether the trial

court’s supplementary instructions to the jury improperly influenced the jury’s

deliberations. Following a review of the record and the parties’ briefs, we affirm the

judgment of the trial court.



                                      I. Factual Background

                 On March 25, 1997, a Davidson County Grand Jury indicted the

appellant on one count of aggravated rape of Marian Greer, accomplished by the

use of force or coercion and while the appellant was armed with a weapon, Tenn.

Code Ann. § 39-13-502(a)(1) (1997), and, in the alternative, one count of

aggravated rape of Marian Greer, causing bodily injury to the victim, Tenn. Code

Ann. § 39-13-502(a)(2). At the appellant’s trial, the State’s proof established that,

on January 21, 1997, the appellant assaulted his cousin, Marian Greer. During the

course of his assault, the appellant threatened Ms. Greer several times with a

butcher knife. Additionally, he tied her hands behind her back, and, upon

encountering resistance from Ms. Greer, placed her in a “choke hold.”

Subsequently, he removed her pants and underwear and attempted to engage in

sexual intercourse with her.1 A subsequent physical examination of Ms. Greer
confirmed the presence of sperm in the outer area of her vaginal opening. Ms.

Greer additionally suffered a small abrasion on her lip and “bloody conjunctival



   1
     In convicting the appellant of aggravated sexual battery, the jury declined to find that sexual
penetra tion had o ccurre d.

                                                    2
sclera” or bleeding in her eyes possibly caused by trauma to her eyes.



              Following the State’s presentation of proof and the trial court’s denial

of the appellant’s motion for a judgment of acquittal, the appellant declined to offer

any proof. The trial court then conferred with the parties concerning proposed jury
instructions. The parties agreed upon the lesser included offenses encompassed by

each count of the indictment. However, defense counsel expressed some concern

that the jury would not understand that the two counts of the indictment represented
two alternative theories of guilt requiring only one verdict. The trial court

acknowledged the possibility of confusion but concluded that the proposed jury

instructions were adequate.



              The trial court instructed the jury that Count One of the indictment,

charging the appellant with aggravated rape accomplished by the use of force or

coercion and while the appellant was armed with a weapon, encompassed the

following lesser included offenses: (1) rape accomplished by the use of force or

coercion, Tenn. Code Ann. § 39-13-503(a)(1) (1996); (2) aggravated sexual battery

accomplished by the use of force or coercion and while the appellant was armed

with a weapon, Tenn. Code Ann. § 39-13-504(a)(1) (1997); (3) sexual battery

accomplished by the use of force or coercion, Tenn. Code Ann. § 39-13-505(a)(1)

(1996); (4) aggravated assault with a deadly weapon causing bodily injury to

another, Tenn. Code Ann. § 39-13-102(a)(1)(B) (1997); and (5) assault causing

bodily injury to another, Tenn. Code Ann. § 39-13-101(a)(1) (1997). With respect to

Count Two of the indictment, charging the appellant with aggravated rape causing

bodily injury to the victim, the trial court instructed the jury on the following lesser

included offenses: (1) rape accomplished by the use of force or coercion, Tenn.

Code Ann. § 39-13-503(a)(1); (2) aggravated sexual battery causing bodily injury to
the victim, Tenn. Code Ann. § 39-13-504(a)(2); (3) sexual battery accomplished by

the use of force or coercion, Tenn. Code Ann. § 39-13-505(a)(1); (4) aggravated

assault causing serious bodily injury to another, Tenn. Code Ann. § 39-13-
102(a)(1)(A); and (5) assault causing bodily injury, Tenn. Code Ann. § 39-13-


                                             3
101(a)(1).



              The trial court also provided the following instructions to the jury:

              The crime charged in each count of the indictment is a
              separate and distinct offense. You must decide each
              count separately on the evidence and law applicable to it.
              You are reminded, however, that in this particular case,
              Count One of the indictment charges the defendant with
              aggravated rape accomplished by force or coercion and
              armed with a weapon. Count Two of the indictment
              charged the defendant with the offense of aggravated
              rape causing bodily injury.
              You are further reminded that if you find the defendant
              guilty of one count of aggravated rape, you may not find
              him guilty of the other count of aggravated rape with
              respect to the same alleged victim. In that event, you
              would simply report your verdict as to one specific count
              of aggravated rape, and state in your verdict which count
              you are referring to, and remain silent as to the other
              count. This same rule applies if the defendant should be
              found guilty of the lesser included offenses embraced
              with either count of aggravated rape.

              If, after consideration of all the facts in this case, you
              have a reasonable doubt of the guilt of the defendant of
              any offenses heretofore defin[ed] and explained to you, it
              would be your duty to give the defendant the benefit of
              such doubt and your verdict would be simply “not guilty.”



              Following deliberation, the jury announced a verdict of guilt of

aggravated assault for Count One of the indictment and a verdict of guilt of

aggravated sexual battery for Count Two of the indictment. Upon the jury’s

pronouncement of two verdicts of guilt, the trial court conferred with counsel outside

the jury’s presence. The court suggested that it simply repeat the instructions

quoted above. While expressing concern that the jury would again fail to

comprehend the instructions, defense counsel otherwise proffered no objection.

Accordingly, the trial court repeated the above jury instructions verbatim and

requested that the jury “retire and consider [its] verdict after that instruction.”


              When the jury again retired to the jury room in order to resume its
deliberations, defense counsel objected to the trial court’s restatement of the original

instructions due to the trial court’s reference to the original charges of aggravated

rape. Defense counsel argued that the instructions conveyed to the jury the trial

                                             4
court’s dissatisfaction with the jury’s verdicts of guilt of lesser included offenses and

invited the jury to again consider the offense of aggravated rape. The trial court
overruled defense counsel’s objection.



              Following additional deliberation, the jury announced a verdict of guilt
of aggravated sexual battery for Count One of the indictment, whereupon the trial

court polled the jury members, confirming the unanimity of their verdict.

Subsequently, outside the jury’s presence, defense counsel again proffered an
objection, noting that the jury’s initial verdict had acquitted the appellant of

aggravated sexual battery with respect to Count One of the indictment. Defense

counsel asked that the trial court enter a verdict of guilt of aggravated assault for

Count One. The trial court in turn deferred consideration of the appellant’s objection

until the hearing on the appellant’s motion for new trial. Following this hearing on

July 17, 1998, the trial court denied the appellant’s motion.



                                       II. Analysis

A. The Jury’s Verdict

              The appellant argues that, when the jury returned verdicts of guilt for

both counts of the appellant’s indictment, the trial court should have accepted the

jury’s verdict of guilt of aggravated assault for Count One of the indictment and

disregarded as mere surplusage the jury’s verdict of guilt of aggravated sexual

battery for Count Two. The appellant explains that, because “[t]he jury in this case

was specifically instructed not to consider count two if they reached a verdict on

count one, and were also instructed that the [appellant] could be convicted on either,

but not both, counts one and two,” the jury’s legal duties ended when they

unanimously determined that the appellant was guilty of aggravated assault with

respect to Count One.


              Initially, the jury’s return of two verdicts of guilt clearly reflected their

failure to comprehend the trial court’s instructions. If the jury’s resolution of the case
was uncertain due to their misapprehension, their legal duties were not discharged.


                                              5
Turning to the clarity of the jury’s findings, we acknowledge that, as a general rule,

matter contained in a verdict which is immaterial or not responsive to the issues
presented at trial may simply be rejected as surplusage by the court. 89 C.J.S. Trial

§ 509 (1955). See also, e.g., Broestler v. State, 212 S.W.2d 366, 367 (Tenn.

1948)(citation omitted)(verdict of guilt of offense for which the defendant was not on
trial could be rejected as “‘irresponsive and therefore surplusage’”). However, we

reject the appellant’s argument in this case that the jury’s verdict for Count Two of

the indictment, finding the appellant guilty of aggravated sexual battery causing
bodily injury to the victim, was immaterial or not responsive to the issues. On the

contrary, whether or not the appellant sexually assaulted his cousin and in what

manner were the principal issues in the case.



              In other words, each verdict returned by the jury represented an

alternative potential resolution of the principal issues at the appellant’s trial. Of

course, a jury’s return of multiple verdicts in a case in which only one judgment of

conviction can lie does not necessarily require the resumption of deliberations. In

some circumstances, a trial court may simply dismiss or vacate one of the verdicts

or “merge” the jury’s findings into one judgment of conviction. For example, in State

v, Addison, 973 S.W.2d 260, 265-267 (Tenn. Crim. App. 1997), the State charged

the defendant with first degree premeditated and deliberate murder and first degree

felony murder in two separate counts of the indictment although only one killing had

occurred. The jury returned verdicts of guilt for each count. Id. This court held that,

when two separate counts of an indictment charge two separate means of

committing the same offense and the jury returns verdicts of guilt for both counts, a

trial court may dismiss one of the counts or, preferably, allow the jury’s verdicts to

stand as legitimate findings of fact and merge the same offense counts into one

judgment of conviction. Id. at 267. We explained that, if the means of committing
the offenses are not mutually exclusive, “there is no legal bar to verdicts being

returned for both counts.” Id.



              Another somewhat different example occurs when two counts of an


                                            6
indictment charge two different offenses, one of which is a lesser included offense of

the other, and the jury returns verdicts of guilt for both counts. In State v. Banes,
874 S.W.2d 73, 75-79 (Tenn. 1993), the State charged the defendant in two counts

with aggravated rape and aggravated sexual battery, the latter being a lesser

included offense of the former, and the jury returned verdicts of guilt for both counts.
The Tennessee Supreme Court observed that

                  [i]n the circumstance, in which two guilty verdicts are
                  returned as to alternative charges, the guilty verdict on
                  the greater charge stands and the guilty verdict on the
                  lesser charge merges into the greater charge.

Id. at 81 (footnote omitted). Unlike the case of multiple verdicts for first degree

premeditated murder and first degree felony murder, the jury’s verdicts of greater

and lesser included offenses do not stand as equally legitimate findings of fact, but

“the less important ceases to have an independent existence.” State v. Cribbs, No.

02C01-9508-CR-00211, 1997 WL 61507, at *17 (Tenn. Crim. App. at Jackson,

February 14, 1997), affirmed by State v. Cribbs, 967 S.W.2d 773 (Tenn.), cert.

denied,        U.S.      , 119 S.Ct. 343 (1998).



                  The court in Banes also suggested that, in a case warranting only one
judgment of conviction, a trial court might “merge” two verdicts of guilt of different

offenses even though neither offense is a lesser included offense of the other. 874

S.W.2d at 81 n. 10 (citing 11 David Louis Raybin, Tennessee Practice: Criminal

Practice and Procedure § 16.20, at 413 (1985)). Cf. State v. Baldwin, 867 S.W.2d

358, 360 n. 1 (Tenn. Crim. App. 1993)(the defendant was charged alternatively and

in separate counts with the sale of cocaine, possession of cocaine with intent to

deliver, and possession of cocaine with intent to sell; this court observed that, had

the jury returned verdicts of guilt for all three counts, the judge could have dismissed

any convictions to avoid double jeopardy). Again, “the law . . . refers the verdict to
the highest offense, or the highest grade of offense.” Walton v. State, 448 S.W.2d

690, 696-697 (Tenn. Crim. App. 1969), overruled on other grounds by Greer v.

State, 539 S.W.2d 855 (Tenn. Crim. App. 1976). 2

   2
     In Walton, we addressed the validity of two judgments of conviction arising out of different criminal
procee dings. Id. at 69 2. Ne verth eles s, the cour t relied upon cas es ad dres sing the v alidity of mu ltiple
verdicts in a single pr oceed ing. Id. at 696-6 97 (citing, for e xamp le, Patmo re v. State , 277 S.W. 892

                                                        7
                 In this case, although the two separate counts of the indictment

essentially charged two different means of committing the same offense, the jury
returned two verdicts of guilt of different offenses, neither of which is a lesser

included offense of the other. The appellant has cited no pertinent authority for the

proposition that, under these circumstances, the trial court was required to
automatically accept the jury’s verdict of guilt for Count One. As noted above, case

law in this State suggests instead that the trial court could have entered a judgment

of conviction reflecting the jury’s initial verdict for Count Two, as the jury’s verdict of
guilt of aggravated sexual battery was the verdict for the greater charge. More

importantly, perhaps, nothing in the above case law suggests that this procedure is

mandatory and that the trial court would err by instructing the jury to return to the

jury room for further deliberations, particularly when, viewing the jury’s initial

verdicts, “[o]ne can only speculate on what the jury intended to do in this case . . . .”

Baldwin v. State, 372 S.W.2d 188, 189 (Tenn. 1963).



                 Indeed, if a jury’s verdict is doubtful, “the court has the power and the

duty to send them back to the jury room with directions to amend the verdict and put

it in proper form.” Meade v. State, 530 S.W.2d 784, 787 (Tenn. Crim. App. 1975).

See also State v. Nichols, 877 S.W.2d 722, 730 (Tenn. 1994); State v. Mounce, 859

S.W.2d 319, 322 (Tenn. 1993); State v. Smith, 836 S.W.2d 137, 143 (Tenn. Code

Ann. 1992); Gwinn v. State, 595 S.W.2d 832, 835 (Tenn. Crim. App. 1979). Our

supreme court has explained:

                 “Since the reception of a verdict is not solely a ministerial
                 as distinct from a judicial act, when the jury return (sic)
                 into court with a verdict, it is not a matter of course to
                 receive it in the form in which it is rendered. It is the duty
                 of the Court . . . to look after its form and substance, so
                 far as to prevent an unintelligible, or a doubtful, or an
                 insufficient verdict from passing into the records of the
                 court.”
State v. Henley, 774 S.W.2d 908, 915 (Tenn. 1989)(citation omitted). In other

words, although a judge may not arbitrarily refuse to accept a jury’s verdict and may
not coerce the jury to reach a verdict,



(Tenn. 1925)).

                                               8
               [t]he judge is entitled to satisfy herself that the jurors
               have truly rendered a unanimous verdict. The judge’s
               concern may arise from words uttered by a juror, the
               improbability of a particular verdict or combination of
               verdicts, or even a juror’s demeanor.

State v. Apodaca, 940 P.2d 478, 483-484 (N.M. Ct. App. 1997). Accordingly, we

conclude that the trial court properly instructed the jury to resume deliberations
following its initial return of verdicts of guilt for both counts of the appellant’s

indictment. See also, e.g., Meade, 530 S.W.2d at 787 (when, contrary to the trial

court’s instructions, the jury returned verdicts of guilt for both receiving stolen
property and concealing stolen property, two “separate and distinct crimes,” the trial

court properly instructed the jury to return to the jury room and resume

deliberations); McBride v. State, 290 S.W.2d 648, 651-652 (Tenn. 1956)(when,

contrary to the trial court’s instructions, the jury found the appellant guilty of

receiving, transporting, and possessing intoxicating liquor, the trial court properly

instructed the jury to deliberate further and “correct their verdict”).



               When a jury is sent back to the jury room to reconsider and correct a

defective verdict or one based upon an erroneous view of their duty, the jury “‘may

then disregard their original verdict and return an entirely different one.’” Riley v.

State, 227 S.W.2d 32, 34 (Tenn. 1950)(citation omitted). This rule is grounded upon

the principle that “[t]here is no verdict, so long as there is any uncertainty or

contingency as to the finality of the determination of the jury.” Baldwin v. State, 204

S.W.2d 1018, 1018 (Tenn. 1947). Cf. State v. Burridge, No. 01C01-9511-CC-

00366, 1996 WL 499516, 1996 WL 499516, at *2 (Tenn. Crim. App. at Nashville,

September 5, 1996)(when the trial court returned the jury to the jury room to resume

its deliberations concerning sentencing, the “jury could certainly revisit the issue of

guilt”). Compare State ex. rel. Myers v. Brown, 351 S.W.2d 385 (Tenn. 1961)(when

an unambiguous verdict of acquittal was accepted by the trial judge, who recorded
the verdict on his docket, the verdict could not be changed while the jury remained

undischarged for the purpose of considering the punishment of co-defendants who

were found guilty); State v. Green, 995 S.W.2d 591, 609 (Tenn. Crim. App. 1998),

perm. to appeal denied, (Tenn. 1999)(“when a jury is discharged, they may not be


                                              9
reassembled to amend or correct their verdict in a substantive way”). Accordingly,

the jury was entitled to change their verdict of guilt for Count One of the indictment
from aggravated assault to aggravated sexual battery.



                  Finally, we conclude that the trial court’s reiteration of its original
instructions to the jury in no way improperly influenced the jury’s final decision.

Riley, 227 S.W.2d at 702. In short, even assuming that the trial court should have

omitted any reference to the original charges of aggravated rape in instructing the
jury to resume deliberations, the appellant is unable to demonstrate any prejudice

flowing from the trial court’s instructions. The jury’s initial verdicts encompassed

findings of all the essential elements of aggravated sexual battery as charged in

Count One of the indictment. The jury’s subsequent rearrangement of their findings

to reflect a single, unanimous verdict of guilt of aggravated sexual battery for Count

One simply reflected their newly acquired understanding that the State was alleging

only one offense, the evidence adduced at trial overwhelmingly supported the jury’s

final verdict.



B. Lesser Included Offenses

                  Although not raised by either party, we note in closing that, pursuant to

our supreme court’s recent decisions in State v. Burns, 6 S.W.3d 453 (Tenn. 1999),

and State v. Dominy, 6 S.W.3d 472 (Tenn. 1999), the appellant was subject to

conviction of aggravated sexual battery, accomplished by the use of force or

coercion and while the appellant was armed with a weapon, on the basis of an

indictment charging the offense of aggravated rape, similarly accomplished by the

use of force or coercion and while the appellant was armed with a weapon.3 In


    3
      We note that defense counsel proffered no objection to the trial court’s proposal that it charge the
lesser included offense of aggravated sexual battery. However, there is currently some disagreement
between different panels of this court concerning what actions by a defendant or defense cou nsel are
nec ess ary to esta blish a defe nda nt’s c ons ent to the a men dme nt of a n indic tme nt un der T enn . R. C rim.
P. 7(b). See State v. Reeves, No. 01C01-9711-CR-00515, 1999 WL 155926 (Tenn. Crim. App. at
Nash ville), perm. to appeal denied, (Tenn. 1999)(in order to establish a defendant’s consent to an
amendment to an indictment charging a different offense, the record must reflect a written waiver by
the defen dant of his right to be ch arged b y a gran d jury); State v. Ealey, 959 S.W.2d 605 (Tenn. Crim.
App. 1997)(a defendant’s request for a jury instruction on an offense not encompassed by the original
charge amou nted to a c onsen sual am endm ent to his pr esentm ent); State v. Davenport , 980 S.W.2d
407 (Tenn. Crim. App. 1998)(notwithstanding Ealey, this court will not presume a defendant’s consent
to an amendment of the indictment on the basis of his failure to object to an erroneous lesser included
offense instruction ); State v. Stokes, No. 01C01-9710-CC-00442, 1999 WL 16805 (Tenn. Crim. App.

                                                        10
Burns, our supreme court observed that, under the pure statutory elements

approach to lesser included offenses set forth in Howard v. State, 578 S.W.2d 83
(Tenn. 1979), sexual battery is not a lesser included offense of rape, as it requires

the additional statutory element “that the touching be for the purpose of sexual

arousal or gratification.” 6 S.W.3d at 465-466. Thus, the court noted that “in some
cases, application of the Howard analysis may deprive the defendant of the right to

present a defense.” Id. at 465. The court concluded that many jurisdictions had

adopted the American Law Institute’s Model Penal Code definition of lesser included
offenses in order to resolve this problem, Model Penal Code § 1.07(4) (1985), and

itself adopted a modified version of the Model Penal Code definition. Id. at 466-467.



                Under Burns,

                [a]n offense is a lesser included offense if:

                (a) all of its statutory elements are included within the
                statutory elements of the offense charged; or

                (b) it fails to meet the definition in part (a) only in the
                respect that it contains a statutory element or elements
                establishing
                         (1) a different mental state indicating a
                         lesser kind of culpability; and/or
                         (2) a less serious risk of harm or risk of
                         harm to the same person, property or public
                         interest; or

                (c) it consists of [facilitation of, an attempt to commit, or a
                solicitation to commit the offense charged or a lesser
                included offense].

Id. Thus, implicit in the supreme court’s decision is the conclusion that the intent to

touch a victim’s intimate parts for the purpose of sexual arousal constitutes a mental

state reflecting a lesser degree of culpability than the reckless, knowing, or

intentional commission of sexual penetration for any reason. See also State v.

Gamble, No. 03C01-9812-CR-00442, 2000 WL 45718, at *6 (Tenn. Crim. App. at

Knoxville, January 21, 2000).




at Nash ville), perm. to appeal granted, (Tenn. 1999)(a defendant’s expressed approval of the offenses
to be charged to the jury amoun ted to consent to the amendm ent of the indictment).

                                                 11
                                  III. Conclusion

             For the foregoing reasons, we affirm the judgment of the trial court.




                                               Norma McGee Ogle, Judge



CONCUR:



Jerry L. Smith, Judge



Thomas T. Woodall, Judge




                                         12
