         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      May 11, 2005 Session

               STATE OF TENNESSEE v. MARK S. ARMSTRONG

                 Direct Appeal from the Circuit Court for Rutherford County
                         No. F-53628 James K. Clayton, Jr., Judge



                      No. M2004-02432-CCA-R3-CD - Filed July 22, 2005


A Rutherford County jury convicted the Defendant, Mark S. Armstrong, of aggravated rape, and the
trial court sentenced the Defendant to twenty years, as a Range I offender. On appeal, the Defendant
contends that: (1) the trial court erred when it failed to grant the Defendant’s motion for a mistrial
when inadmissible evidence was admitted through an inadequate redaction of a videotaped
statement; (2) the trial court erred in failing to provide an adequate limiting instruction to the jury
regarding a videotape sound malfunction; (3) the trial court erred when it failed to require the State
to make an election of the offense for which it sought a conviction; (4) the trial court erred in failing
to grant the Defendant’s motion for judgment of acquittal; and (5) the evidence is insufficient to
sustain the Defendant’s conviction. Finding no error, we affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN , JJ., joined.

John C. Mitchell (at trial), and Allen D. Hale (on appeal), Murfreesboro, Tennessee, for the
appellant, Mark S. Armstrong.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and Laurel A. Nutt, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                              OPINION
                                           I. Facts at Trial

      In February 2003, the Rutherford County Grand Jury indicted the Defendant for aggravated
rape. On January 27 and 28, 2004, at the Defendant’s jury trial, the following evidence was
presented: A.M.,1 the victim, testified that she was thirteen years old in August of 2002. She recalled
that, on August 6, 2002, she lived down the street from the Defendant. She said that she was friends
with the Defendant’s wife, Susan Armstrong, and his children, and she and her siblings often played
at the Defendant’s house. She said that, on August 6, she told her sister, that she was going to the
Defendant’s house to get a skirt from his wife. A.M. recalled that her younger brother was at the
Defendant’s house playing with the Defendant’s son.

         She said that she went to the Defendant’s house, and, after no one answered the front door,
she walked around to the garage and saw the Defendant. She said that she asked the Defendant if
his wife was at home, and he informed her that she was not. She asked the Defendant if she could
go into the house to retrieve a skirt that she had lent to his wife, and he told her that was fine. A.M.
said that she went into the house and walked upstairs, and she could hear the television in the
playroom downstairs where her brother was playing. She testified that, as she reached the top of the
stairs, she felt the Defendant “touching [her] butt. And that’s when he picked [her] up, and he set
[her] on [his] bed.” A.M. recalled that the Defendant lifted her shirt and began touching her chest
underneath her bra. She said that the Defendant then removed his clothes and fully removed all of
her clothes. She testified that the Defendant digitally penetrated her, and, “It hurt.” She said that
the Defendant then penetrated her with his penis, and, “It hurt.” She recalled that she said “ow,” but
she did not scream or call out for help because she was afraid. She explained that she thought, “if
he did what he did in the first place, [she] was afraid he would do something else if [she] tried to call
for help.” A.M. recalled that the Defendant was “moving up and down” and “breathing hard.” She
recalled that after he stopped, she “rolled out from under him,” got dressed, and quickly left the
house, taking with her the skirt she had come to retrieve. She said that there was “wet stuff” on the
bed, and the Defendant tried to wipe it off with his hand. A.M. testified that she did not see anyone
when she was leaving the Defendant’s house.

        A.M. testified that she went to her house, and she told her sister that she was going next door
to see their neighbor, Shera Allen. She recalled that, before she went to Allen’s house, she called
the Defendant and told him that she was going to “tell on him” and that she “might be pregnant,” and
the Defendant responded, “no” both times. She said that she was crying and scared as she told Allen
about the events at the Defendant’s house, and she asked Allen to tell the victim’s sister what
happened. Allen walked with A.M. to A.M.’s house, and A.M. sat with Allen while she talked to
A.M.’s sister. A.M. said that she then called her stepmother at work to tell her what had happened,
and she thought her stepmother called the police, because the police came to her house shortly after
she spoke to her stepmother, and her father came home around this time as well. A.M. said that the
police came to her house and questioned her about the events at the Defendant’s house. She said that
they collected the clothes that she had been wearing, and then they put her in an ambulance, which
drove her to the “doctor and [to] get checked.”

        On cross-examination, A.M. testified that she did not know that the Defendant had followed
her into the house until she was in his bedroom, and he had begun touching her. She said that he


        1
            It is the policy of this Court to refer to the victims of sexual assault by their initials only.

                                                                2
entered the bedroom and closed the door. She said that the Defendant did not speak to her during
the incident, and he did not speak to her while she got dressed after the incident. She remembered
giving the police a statement, but she was not aware that the interview was recorded. On
redirect-examination, A.M. reiterated that she was afraid to scream for help, and she explained that
she was also frightened because the Defendant’s facial expression during the incident, “was all mean
looking . . . . Like his eyebrows were all down . . . [and] he was breathing hard . . . .”

         Detective Mark Warf, an investigator with the Rutherford County Sheriff’s Department,
testified that he has been with the sheriff’s department for nineteen years. Detective Warf recalled
that, when he arrived on the scene of the incident, A.M. was upset and crying in the back of the
ambulance. He said that he interviewed A.M. at the scene and again on a different day. He recalled
that he spoke to the Defendant briefly at his home, and the Defendant came voluntarily to the police
station to give a statement. He said that he collected the comforter, cover sheet, and fitted sheet from
the Defendant’s bed as evidence, and he sent these items to the Tennessee Bureau of Investigation
(“TBI”) crime lab for analysis and testing. The detective said that the Defendant gave both a written
statement and a videotaped statement. The Defendant’s videotaped statement was played for the
jury. In his videotaped statement, the Defendant denied any sexual contact with A.M., and he
referred to her as “a hot thirteen year old kid.” Detective Warf further testified that, with a search
warrant, he obtained a sample of the Defendant’s blood for analysis and testing.

       Detective Warf read the Defendant’s written statement, stating:

                Tuesday, August 6th, 2002. [A.M.] came over around maybe 2 pm or so, I
       was in the garage on the phone, and she said she needed to talk to her brother who
       was in the house with my son. I told her that he was in the house, and she went on
       in like always.

               Then in maybe five to ten min[utes], she came back to the doorway and said
       something about a skirt. I was still on the phone with Alexander Ford parts
       dep[artment], and I told her I did not know nothing about it. She said that my wife
       Susan had told her where it was, and I told her it would be ok[ay] for her to go
       upstairs and look.

               I was never in the house the whole time she was there. She came back out in
       a few min[utes] with a skirt and said by[e]. I said see y[ou]. To add this, her sister
       called and ask[ed] if my daughter could play and I told [her] she was sleeping. [T]his
       is while she is looking for her skirt.

The Detective said that, along with the items he collected from the Defendant’s home and the
Defendant’s blood, he also sent A.M.’s rape kit, and the shorts, shirt, bra, and underwear that she
was wearing at the time of the incident to the TBI crime lab.

       On cross-examination, the detective testified that, when he first went to the Defendant’s


                                                   3
house, the Defendant was cooperative and gave the detective consent to search his home. Detective
Warf recalled that the Defendant voluntarily met the detective at the police station for questioning,
immediately after the detective requested. He said that he formed his opinion that the Defendant had
raped A.M. during his interview with the Defendant, because the Defendant was “rubbing his head,
and it looked like he was having maybe some second thoughts,” and he said that he decided to charge
the defendant when he received a report from “Our Kids” clinic that A.M.’s physical examination
supported her allegations of rape. The detective admitted that the Defendant said he had a migraine
around the same time he began rubbing his head. Detective Warf said that, when he interviewed
A.M. on August 6, he did not take notes. He did not recall whether A.M. told him that she took a
shower after the incident, and he explained that the initial incident report was filed by Deputy David
Crim, the first officer to arrive on the scene of the incident. He testified that he filed a supplemental
report. He acknowledged that he reported that A.M. was upset when he interviewed her and that she
was “concerned that her parents were going to be upset with her.”

        Hunter Greene testified that he works for the TBI crime lab in the serology and
deoxyribonucleic acid (“DNA”) analysis section. Greene said that he received eleven items of
evidence to process for this case: A.M.’s blood sample; a vaginal swab from A.M.’s rape kit; A.M.’s
panties; the Defendant’s blood sample; A.M.’s shorts; A.M.’s shirt; A.M.’s bra; and the Defendant’s
bedding, including pillowcases, a flat and a fitted sheet, and a comforter. Greene testified that he
found semen, but not spermatozoa, on the panties, and he explained that he was unable to obtain a
DNA profile because the DNA sample was degraded and insufficient in amount. He testified that
semen was only located in one area on the bottom bed sheet, at one end of the sheet over to one side.
He said that his tests revealed semen, but not spermatozoa, on the bottom bed sheet, and the sample
was a mixture of DNA from three different individuals. He explained that he positively identified
the Defendant as one of the three contributors. He further explained that he could not positively
identify A.M. as a contributor, but he could not exclude her either. Greene testified that his
examination did not reveal semen or spermatozoa on the vaginal swab, and he said that he would not
expect semen to be found on the vaginal swab if the ejaculation occurred outside of the female’s
body. He affirmed that the presence of semen inside her underwear, but not inside her vagina, could
occur if the ejaculation occurred during the male’s removal from the female.

         On cross-examination, Greene reiterated that he found semen, but not spermatozoa, on the
bed sheet. He explained that many factors could cause sperm to be absent from semen, including
a male’s low sperm count and environmental or bacterial degradation. He said that degradation
could occur within days or take a few weeks, depending on the environmental conditions. Greene
testified that, although A.M. was a possible contributor of the unidentifiable DNA samples taken
from the bed sheet, he could not statistically estimate the likelihood of that possibility. He said that
there is no way to determine if the DNA in mixed samples were deposited simultaneously. He
agreed that the life span of DNA has not been precisely determined. Greene testified that he did not
specifically look for, and did not locate, any pubic hair or other materials on the evidence. He said
that the semen found in the underwear was located on the inside rear of the crotch area of the panties.
He reiterated that he was unable to obtain enough cellular material for a sufficiently identifiable
DNA profile because the semen found in the underwear was insufficient, either in the quantity or the


                                                   4
quality of the sample. Greene acknowledged that his report stated that the sample found on the bed
sheet contained the DNA of “two or more individuals,” and not “three individuals.” He admitted
that the other contributors could have been anyone who had access to the bed sheet.

        Julie Rosof-Williams testified that she is a nurse practitioner employed by Vanderbilt
University and has worked at the Our Kids Clinic in Nashville for thirteen years. She explained that
Our Kids Clinic evaluates children alleged to be victims of sexual abuse. Rosof-Williams said that
she conducted a medical examination of A.M. on August 6, 2002. She explained that, in her
evaluation, she relies on a patient’s medical history, and she said that Lisa Dupree, a clinical social
worker who is trained in interviewing children, took A.M.’s medical history at the clinic. Included
in this medical history is an account of A.M.’s allegations of rape by the Defendant. According to
the report, A.M. stated that she went to the Defendant’s house to get a dress back from his wife.
A.M. reported that “she was going up the steps, and she felt [the Defendant] behind her, touching
her on her butt.” A.M. said that the Defendant forced her onto the bed, touched her chest and
removed her clothes. Additionally, the report states, “[A.M.] describes that [the Defendant] put his
penis in her vagina. She reports that the contact was painful, but she did not see any bleeding.
[A.M.] stated that he did not put anything on his penis, and she does not think he ejaculated.”

        Rosof-Williams testified that her examination of A.M. revealed a bruise on A.M.’s hymenal
tissue. She said that the location of the bruise was consistent with injury to the genital area and
penetration, and the reddish-purple color of the bruise indicated that it occurred within the preceding
72 hours. Additionally, Rosof-Williams observed that, on slides made during the exam, A.M. had
“an abrasion to her fossa navicularis, a structure inside the genital opening but external to the
hymenal surface,” which also appeared to have occurred within the preceding 72 hours. She
explained that the abrasion could have been caused by sexual contact, a self-inflicted injury, or an
iatrogenic injury, caused by the examination. Based on A.M.’s reported medical history,
Rosof-Williams concluded that the injury was caused by sexual penetration, but she could not be
certain. She testified that she did not find any sperm present in the vagina, but she was unable to
ascertain the presence of semen.

        On cross-examination, Rosof-Williams explained that the bruise on the hymenal tissue was
not large, but she explained the hymenal area is small, and the bruise was larger than a pinpoint
bruise. She said that she could not determine whether the abrasion to the fossa navicularis area was
caused by consensual or non-consensual sexual contact. She did not observe any visible signs of
force or violence. Rosof-Williams explained that the fossa navicularis is a delicate area, and the
abrasion to that area could have resulted from A.M. scratching the area. She further explained that
the abrasion could have been an iatrogenic injury, or an injury caused during the examination itself.
She admitted that she would generally expect to see more injury to the genital region following the
rape of a thirteen year old girl by an adult man, but she explained that the degree of injury would
vary from one person to the next depending on vaginal secretions, hymenal tissue elasticity, and
various other factors. Rosof-Williams said that it was possible to cause a hymenal bruise, like that
observed on A.M., during a gynecological exam, but she explained that she did not do anything
during her examination of A.M. that would cause that kind of injury. She did not observe any


                                                  5
external evidence of semen during her examination.

        Deputy David Crim, a deputy with the Rutherford County Sheriff’s Department, testified that
he was the first officer to arrive at A.M.’s house. He recalled that, when he arrived, A.M. was
“whimpering and crying,” and, when he entered the house, “she collapsed onto the floor and began
to scream and cry . . . .” He said that he calmed A.M. enough to question her about the incident, but
he said that she continued to be upset, and he had to ask questions and “draw the information out of
her.” Deputy Crim recalled that A.M. told him that she went upstairs in the Defendant’s house, and
the Defendant grabbed her from behind and forced her into a bedroom or living room. He said that
A.M. stated that the Defendant had sexually assaulted her, and, upon further questioning, she told
the deputy that the Defendant had raped her.

                           II. The Defendant’s Videotaped Statement

       At the beginning of the Defendant’s trial, in a jury out conference, the State and the defense
announced an agreement by which certain portions of the videotaped statements, from the victim and
the Defendant, would not be admitted into evidence. Both parties agreed that the videotapes should
be redacted to exclude any evidence of whether the Defendant took a lie detector test and to exclude
the Defendant’s statements about the victim’s character. Although defense counsel had not seen the
redacted videotapes, the State confirmed that the agreed portions had been deleted.

        Preceding one of the multiple breaks caused by editing the videotape, the statement “Would
you be willing to take a lie de…” is audible. At another point in the videotape, the tape is spliced
in such a way that the editing created a sound anomaly that sounds as if the Defendant states, “She
is known to be a whore.” Between the words “she is known to be a” and what sounds like the word
“whore,” the videotape “skips,” and the Defendant changes his physical position.

       After the Defendant’s videotaped statement was played for the jury, the Defendant’s counsel
asked for a break in the proceedings, which the trial court granted, after allowing the State “one or
two more questions.” During the recess, in a jury out conference, the defense requested a mistrial
based on the audible statement, “Would you be willing to take a lie de . . . .” When the trial court
denied the Defendant’s motion for a mistrial, the following exchange took place:

       The Court: Because lie detector, if it was done that way, listen I’m not going to allow
       a mistrial because y’all have agreed that this was redacted . . . correctly. . . . And I
       heard lie, but I didn’t hear detector. And I don’t know that any juror – I think that if
       I call their attention to it and say that you may have heard --

       [Defense Counsel]: Will cause more harm than good.

       The Court: Yes, will cause more harm. Because the lie detector test is not
       admissible, and I don’t think we need to get into the reasons for it not being
       admissible.


                                                  6
       [Defense Counsel]: No.

       The Court: Even if he’d asked him about it, we don’t tell them he did take it, we
       don’t tell them he didn’t take it. So I don’t see how there’s any harm there.

               ....

       [Defense Counsel]: . . . Well, I would just as soon the Court not even bring that part
       up because I don’t want it to stick out in their minds.

        The trial court acknowledged that jurors sometimes speculate even though they are not
allowed to do so, but the court ultimately determined that the statement did not warrant a mistrial,
because, there was neither evidence whether the Defendant took a lie detector test, nor evidence of
the results of such a test.

       The Defendant also requested a curative instruction regarding the anomaly that sounded like
the word “whore.” Defense counsel specifically requested that the trial court not mention the word
“whore” in its instruction. Following the jury out conference, the trial court instructed the jury as
follows:

       Ladies and Gentlemen, you all have just seen the statement of [the Defendant]. And
       to save time, I had some of the lengthy part of that excluded, not to keep you all from
       hearing it, but just to save some time because it was much longer than what it
       appeared to be.

               But at times when the splice was made – we didn’t have the type of
       equipment that we could zero in and get it off – there were some things said that
       really sounded like something else. So don’t be concerned about anything that you
       think you might have heard, especially if it was at a time when the machine was cut
       off and started again, when it was spliced, so to speak.

        The jury convicted the Defendant of aggravated rape, and the Defendant subsequently made
a motion for a new trial, asserting that the evidence was insufficient to support the conviction. The
trial court denied the defendant’s motion for a new trial, finding that the physical evidence,
combined with the A.M.’s testimony as a “ very credible witness,” was sufficient evidence to support
the Defendant’s conviction for aggravated rape.

                                           III. Analysis

        On appeal, the Defendant contends that: (1) the trial court erred when it failed to grant the
Defendant’s motion for a mistrial when inadmissible evidence was admitted through an inadequate
redaction of a videotaped statement; (2) the trial court erred when it failed to provide an adequate
limiting instruction to the jury regarding a videotape sound malfunction; (3) the trial court erred


                                                 7
when it failed to require the State to elect the offense upon which it sought conviction; (4) the trial
court erred when it failed to grant the Defendant's motion for judgment of acquittal; and (5) the
evidence is insufficient to sustain the Defendant's conviction.

                                         A. Failure to Order Mistrial

        The Defendant contends that the trial court erred when it failed to order a mistrial because
the videotape of the Defendant’s police interview was not adequately redacted. Specifically, the
Defendant asserts that the videotape played for the jury contains a question by the police, “Would
you be willing to take a lie de . . .”, which, the Defendant asserts, presents inadmissible evidence,
both by agreement and under the Tennessee Rules of Evidence, and was, therefore, grounds for a
mistrial.2 The State counters that the Defendant has waived this issue by failing to raise it in his
motion for a new trial, and, alternatively, the trial court properly denied the Defendant’s motion for
a mistrial.

        Initially we note that the Defendant has waived this issue by failing to raise it in his motion
for a new trial. See Tenn. R. App. P. 3(e). The Tennessee Rules of Appellate Procedure provide that
a ground upon which a new trial is sought which was not raised in a motion for new trial will be
treated as waived on appeal. Tenn. R. App. P. 3(e). However, were this issue not waived, the
Defendant is still not entitled to relief.

          “Tennessee courts have held repeatedly that polygraph test results, testimony concerning such
results, and testimony concerning a defendant’s willingness or refusal to submit to a polygraph test
are inadmissible.” See State v. Damron, 151 S.W.3d 510, 515 (Tenn. 2004) (citing State v. Pierce,
138 S.W.3d 820, 826 (Tenn. 2004)). Polygraph evidence is not considered reliable, and, therefore,
it is irrelevant under Tennessee Rule of Evidence 402. Id. “Therefore, polygraph evidence, which
includes polygraph test results, testimony concerning such results, and testimony concerning a
defendant’s willingness or refusal to submit to a polygraph test, is not admissible.” Id. at 516.

        The determination of whether to grant a mistrial rests within the sound discretion of the trial
court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994). The reviewing court should not overturn
that decision absent an abuse of discretion. State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002). “The
purpose for declaring a mistrial is to correct damage done to the judicial process when some event
has occurred which precludes an impartial verdict.” State v. Williams, 929 S.W.2d 385, 388 (Tenn.
Crim. App. 1996). A trial court should grant a mistrial only when it is of “manifest necessity.” Id.;
Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). “In other words, a mistrial is an
appropriate remedy when a trial cannot continue, or a miscarriage of justice would result if it did.”
State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000) (citing State v. McPherson, 882 S.W.2d
365, 370 (Tenn. Crim. App. 1994)). The burden of establishing the necessity for mistrial lies with
the party seeking it. Williams, 929 S.W.2d at 388. No abstract formula should be mechanically


         2
         W e note that the lie detection test was not a polygraph, but a voice stress analysis test. However, for the
purposes of our review and analysis in this case, the type of test is not at issue.

                                                           8
applied in making this determination, and all circumstances should be taken into account. State v.
Mounce, 859 S.W.2d 319, 322 (Tenn. 1993).

         In the case under submission, the jury heard a partial statement that could indicate that the
police asked the Defendant if he was willing to take a lie detector test. There was no indication of
the Defendant’s answer, or the results of any such test. Additionally, it appears from the record that
the trial court was willing to give the jury a curative instruction on this matter, and the Defendant
declined. The trial court did instruct the jury, as discussed below, to ignore anything the jury
“think[s] they heard” where the tape was edited, and we conclude that this instruction would have
helped prevent the jury’s possible speculation. Additionally, although, as the Defendant correctly
asserts, the case largely hinged on the comparable credibility of the Defendant and A.M., it was not
entirely a case of “he said, she said.” The Defendant’s DNA matched the DNA from semen found
on the Defendant’s bed sheet, approximately in the location where A.M. testified that the rape
occurred. DNA from an additional person was found mixed with the Defendant’s DNA, and A.M.
could not be excluded as the contributor of this DNA. Although the donor was unidentifiable, semen
was found in A.M.’s underwear, and A.M. had a bruise on her hymenal tissue that was consistent
with sexual penetration. Under these aforementioned circumstances, we cannot conclude that the
trial court abused its discretion when it concluded that the partial statement heard by the jury created
the “manifest necessity” for a mistrial.

                               B. Adequacy of Limiting Instruction

        Next, the Defendant contends that the trial court erred by giving an inadequate limiting
instruction to the jury regarding a sound anomaly on the videotape of the Defendant’s police
interview. Specifically, the Defendant asserts that the videotape splicing and editing caused the
creation of an anomaly that sounded as if the Defendant called the victim a “whore,” and the trial
court’s subsequent instruction to the jury did not adequately address this anomaly. Further, the
Defendant contends that the anomaly produced constitutes gross negligence by the State, and, as
such, is analogous to prosecutorial misconduct, thereby requiring the trial court to grant a mistrial.
The State counters that the Defendant has waived this issue by failing to raise it in his motion for a
new trial, and, alternatively, the trial court provided an adequate curative instruction to the jury.

         Again, we note that the Defendant has waived this issue by failing to raise it in his motion
for a new trial. See Tenn. R. App. P. 3(e). However, were this issue not waived, the Defendant is
still not entitled to relief.

        We conclude that the trial court’s instruction adequately addressed the sound anomaly on the
videotape. The Defendant requested an instruction that addressed the anomaly without using the
word “whore” or drawing unnecessary attention to the anomaly. The trial court explained that the
tape’s edits and splices created sounds that “may have sounded like something else.” The trial court
instructed the jury to ignore anything they thought they “might have heard.” Thus, the trial court
instructed the jury, as the Defendant requested, that the Defendant did not say what it sounded like
he said, and the trial court did so without repeating the epithet or focusing undue attention on it. The


                                                   9
jury is presumed to follow the trial court’s instructions. State v. Walker, 910 S.W.2d 381, 397
(Tenn. 1995). Accordingly, we conclude that the trial court’s instruction was adequate.

                                             C. Election of Offenses

        The Defendant next contends that the trial court erred when it failed to require the State to
elect the offense upon which it sought conviction. The Defendant asserts that the digital and penile
penetrations were two separate offenses, and the State was required to elect one of these offenses
upon which to seek a conviction for aggravated rape.3 The State counters that the trial court did not
err because the two forms of penetration constituted one criminal offense, and, as such, the
unanimity of the verdict cannot reasonably be questioned.

         The Tennessee Supreme Court “has consistently held that the prosecution must elect the facts
upon which it is relying to establish the charged offense if evidence is introduced at trial indicating
that the defendant has committed multiple offenses against the victim.” State v. Johnson, 53 S.W.3d
628, 630 (Tenn. 2001) (citing State v. Kendrick, 38 S.W.3d 566, 568 (Tenn. 2001); State v. Brown,
992 S.W.2d 389, 391 (Tenn. 1999); 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)).
A jury’s verdict is not unanimous when the jurors find the same elements of a particular crime based
on different facts and offenses; the jurors must “deliberate and render a verdict based on the same
evidence.” See Johnson, 53 S.W.3d at 631.

        “There should be no question that the unanimity of twelve jurors is required in criminal cases
under our state constitution.” State v. Brown, 823 S.W.2d 576, 583 (Tenn. Crim. App. 1991). The
Tennessee Supreme Court explained that “‘[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.’” Kendrick, 38 S.W.3d at 568 (quoting Shelton, 851 S.W.2d at 137). The requirement of
election and a jury unanimity instruction exists even though the defendant has not requested them.
Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973). Failure to elect offenses when the proof so
requires constitutes plain error and will result in a reversal of the conviction, unless it is harmless
beyond a reasonable doubt. See State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000).

       In the context of aggravated rape, “sexual penetration” is defined as “sexual intercourse,


       3
           Following the close of proof, the following exchange took place with regard to an election of offenses:

                   [The State]: Your Honor, I’m not sure if we need to make an election since there
                   were two types of penetration.
                   The Court: I don’t think you have to. All you have to do is penetrate. It doesn’t
                   say how or what you penetrate with.
                   [Defense Counsel]: And it’s only a one count indictment, so I don’t think it’s an
                   issue.



                                                          10
cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s
body or of an object into the genital or anal openings of the victim’s, the defendant’s, or any other
person’s body.” Tenn. Code. Ann. § 39-13-501(7) (2003). Although “each act of intercourse
constitutes a distinct and separate offense,” rape may be a continuous offense if the “separate acts
of intercourse are so closely related as to constitute one criminal offense.” State v. Phillips, 924
S.W.2d 662, 664 (Tenn. 1996). When determining if separate sexual penetrations constitute a
singular offense, our Supreme Court suggested consideration of the following five factors: (1) the
nature of the act; (2) the area of the victim’s body invaded; (3) the time elapsed between the acts;
(4) the defendant’s intent; and (5) the cumulative punishment. Id.

        In State v. Adrian Arnett, No. 03C01-9811-CR-00395, 2000 WL 122222, at *7 (Tenn. Crim.
App., at Knoxville, Feb. 2, 2000), aff’d on other grounds 49 S.W.3d 250 (Tenn. 2001), this Court
used the factors suggested in Phillips and held that a digital and a penile penetration could be one
criminal offense. In Arnett, after the Defendant unsuccessfully attempted penile penetration, “[h]e
used his finger, and then he tried again and put his penis inside of [the victim] then.” Arnett, 2000
WL 122222, at *7. In concluding that the digital and penile penetrations were so closely related that
they constituted a single continuous offense, this Court found that both penetrations were to the same
area, only seconds apart, and the digital penetration was merely to facilitate the penile penetration.
Thus, this Court concluded, the second penetration did not result from a “newly formed intent.” Id.

         Similarly, in the case under submission, both penetrations, digital and penile, invaded the
same area of the victim’s body. Further, the victim’s testimony here, like the testimony in Arnett,
indicates that the digital penetration was brief, and immediately followed by penile penetration.
Moreover, like in Arnett, there is no evidence that the penile penetration was the result of a “newly
formed intent to seek sexual gratification or inflict abuse.” Id.; Phillips, 924 S.W.2d at 665. Thus,
we conclude that the Defendant’s digital penetration of the victim was the means to an end, a
facilitation of the intended penile penetration. Accordingly, we find that an election of offenses was
not required in this case.

                   D. Judgment of Acquittal and Sufficiency of the Evidence

        In his final two contentions, the Defendant asserts that the trial court erred when it failed to
grant the Defendant’s motion for judgment of acquittal, and that the evidence is insufficient to
sustain his conviction. Specifically, the Defendant asserts that the victim’s testimony is not credible
and there is insufficient evidence of bodily harm. The State counters that the trial court did not err,
and the evidence is legally sufficient to support the Defendant’s convictions. As these two issues
are materially the same, we will address them both as one.

       When a trial court considers a motion for judgment of acquittal, its sole inquiry is whether
the convicting evidence is legally sufficient. State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim.
App. 1995). The court may not weigh the evidence in reaching its determination. Id. An appellate
court must apply this same standard when reviewing the denial of a motion for judgment of acquittal.
Id.


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        When an accused challenges the sufficiency of the evidence, an appellate court’s standard
of review is whether, after considering the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Duncan, 698
S.W.2d 63, 67 (Tenn. 1985). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State v.
Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

        In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,
995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions
concerning the credibility of the witnesses, the weight and value of the evidence, as well as all
factual issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859.
This Court must afford the State of Tennessee the strongest legitimate view of the evidence
contained in the record, as well as all reasonable inferences which may be drawn from the evidence.
State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant
removes the presumption of innocence and raises a presumption of guilt, the convicted criminal
defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. Id.

        “Aggravated rape is the unlawful sexual penetration of a victim by the defendant or the
defendant by a victim [where] . . . the defendant causes bodily injury to the victim . . . .” Tenn. Code
Ann. §§ 39-13-502(a)(2). “‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object
into the genital or anal openings of the victim’s, the defendant’s, or any other person’s body, but
emission of semen is not required.” Tenn. Code Ann. § 39-13-501(7). Thus, to support a conviction
for aggravated rape, the State was required to prove that the Defendant unlawfully sexually
penetrated A.M., that the Defendant’s actions caused bodily injury to A.M., and that the Defendant
acted intentionally, willfully, or recklessly.

        Viewing the evidence in the light most favorable to the State, and allowing all reasonable
inferences in its favor, the evidence is sufficient to support the Defendant’s conviction for aggravated
rape. The evidence showed that the Defendant, an adult male, was the victim’s neighbor and the
father of the victim’s sibling’s playmates. A.M. went into the Defendant’s house, with his
permission, to retrieve an article of clothing she lent to the Defendant’s wife, and the Defendant then
picked her up, placed her on the bed and began to touch her chest. The Defendant then removed the
victim’s clothes and penetrated her vagina, first digitally, then with his penis. Semen was found
inside A.M.’s underwear. The Defendant’s DNA was matched to DNA taken from semen found on
the Defendant’s bed sheet, approximately in the location where the victim said the rape occurred.
Although the Defendant claims that A.M.’s testimony is not credible, the credibility of witnesses,
and the weight and value of evidence, is within the province of the jury. See Liakas, 286 S.W.2d at
859. There was evidence that A.M. suffered bodily injury as a result of the sexual penetration. A.M.


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testified that both the digital penetration and the penile penetration “hurt,” and she said “ow.” There
was a bruise on A.M.’s hymenal tissue, which is consistent with sexual penetration. Further, A.M.
had a laceration in her genital area that could have been caused by sexual contact.

        We cannot say that, based on this evidence, a rational jury could not find the essential
elements of the charged offense beyond a reasonable doubt. Accordingly, we conclude that the trial
court properly denied the Defendant’s motion for judgment of acquittal and that the evidence is
sufficient to sustain the Defendant’s conviction for aggravated rape.

                                          IV. Conclusion

        In accordance with the foregoing reasoning and authorities, the judgment of the trial court
is affirmed.


                                                        ___________________________________
                                                            ROBERT W. WEDEMEYER, JUDGE




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