         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 18, 2002

            MICHAEL LYNN WALTON v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                           No. 93-C-1076    Seth Norman, Judge



                     No. M2002-00586-CCA-R3-PC - Filed March 14, 2003


Petitioner, Michael Lynn Walton, appeals the trial court's denial of relief under his post-conviction
petition. Petitioner alleged he received ineffective assistance of counsel at trial based on counsel’s
failure (1) to adequately advise Petitioner of the consequences of proceeding to trial; (2) to
adequately cross-examine the victim; (3) to require the State to elect which offenses it was relying
upon to support Petitioner’s convictions; and (4) to appeal the State’s failure to make an election.
Based upon a thorough review of the record, we affirm the judgment of the post-conviction court
denying Petitioner’s claim for relief based on counsel’s failure to adequately advise Petitioner about
the potential consequences resulting from two rape convictions and failure to specifically address
the victim’s inconsistent statements at the second trial. However, we disagree with the post-
conviction court’s finding that counsel’s failure to require an election of offenses was not deficient
conduct and that Petitioner was not prejudiced by such conduct. Accordingly, the judgment is
reversed, Petitioner is granted post-conviction relief, and the case is remanded to the trial court for
retrial on the two counts of rape.

                          Tenn. R. App. P. 3, Appeal as of Right;
                 Judgment of the Criminal Court is Reversed and Remanded

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.
and ROBERT W. WEDEMEYER , JJ., joined.

David M. Hopkins, Nashville, Tennessee, for the appellant, Michael Lynn Walton.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; Pamela Anderson, Assistant District Attorney
General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of
Tennessee.
                                              OPINION

         Petitioner was indicted for two counts of official misconduct, two counts of rape, one count
of sexual battery and one of count attempted rape. Prior to the commencement of Petitioner’s first
trial, the attempted rape and sexual battery charges were dismissed and the trial proceeded on the two
counts of rape and two counts of official misconduct.

         At the conclusion of his first jury trial, Petitioner was found guilty of both counts of official
misconduct, but the trial court declared a mistrial as to the rape counts when the jury was unable to
reach a verdict. Petitioner was retried on the two counts of rape, and a jury found Petitioner guilty
of both counts. After a sentencing hearing, Petitioner was sentenced to one year on each of the
official misconduct convictions and eight years on one rape conviction and nine years on the other.
The trial court ordered the sentences to run concurrently, for an effective sentence of nine years. The
court also entered an amended judgment nunc pro tunc on the two rape counts, sentencing Petitioner
as a multiple rapist under Tenn. Code Ann. § 39-13-523(a)(2). As a multiple rapist, Petitioner is
required to serve 100% of his sentence.

        In his direct appeal, Petitioner argued that (1) the evidence was insufficient to sustain his two
convictions of rape; (2) the trial court erred in denying Petitioner's motion for an instruction as to
statutory rape as a lesser included offense of rape; and (3) the trial court erred in denying Petitioner
probation on the two counts of official misconduct. On November 12, 1997, this Court filed an
opinion affirming the trial court's judgment. State v. Walton, No. 01C01-9509-CR-00290, 1997 WL
709479 (Tenn. Crim. App. 1997), appeal denied, not for citation (Tenn. 2000).

                                       I. Factual Background

        The State’s proof at trial was as follows. In July, 1992, thirteen-year-old J.C. ran away from
his home in Kentucky. (The minor victim will be referred to by his initials.) After stealing a car,
J.C. drove south until the car broke down outside Nashville. He hitched a ride with a truck driver
and later that afternoon ended up at Riverfront Park in downtown Nashville. J.C. had no money, no
change of clothes and had not eaten since breakfast. Later that night, Petitioner, a member of the
Metropolitan Nashville Police Department, drove past J.C. who was walking down the sidewalk.
Petitioner slowed down, and J.C. waved. In a few minutes, Petitioner, now on foot, approached J.C.
Although he was off duty, Petitioner still wore his police uniform. Petitioner asked J.C. if he was
aware it was nearly time for curfew, and J.C. told Petitioner that he was waiting for someone to pick
him up. Petitioner offered to take J.C. to get some food, and eventually J.C. got into Petitioner’s car.

        Petitioner stopped first at a MacDonald’s close to Riverfront Park and bought J.C. a
hamburger and soft drink. Petitioner then drove to Bellevue where he lived. At Petitioner’s house,
J.C. finished his meal and then asked Petitioner if he could take a shower. After he finished
showering, Petitioner gave J.C. a pair of shorts and tee-shirt to put on, and J.C. returned to the living
room to watch television. Petitioner then took a shower and came downstairs dressed only in a
towel.


                                                   -2-
         Petitioner told J.C. he could sleep in Petitioner’s bedroom and Petitioner would sleep
downstairs on the couch. During the night, J.C. woke up to find Petitioner lying beside him in bed
rubbing J.C.’s penis. Petitioner penned J.C. to the bed with his arms and legs and engaged in
fellatio. Although J.C. continued to struggle, Petitioner also forced J.C. to penetrate Petitioner
anally. Petitioner then went downstairs, and J.C. fell asleep.

        Early the next morning, the telephone rang, and J.C. answered it. The caller asked for
Petitioner, and J.C. handed him the telephone. Petitioner then took J.C. back to Riverfront Park.
Although he bought J.C. a coke on the way to the park, Petitioner did not buy J.C. any food or give
him any money. Petitioner told J.C. he would meet him later that night, and J.C. spent the day
walking through the stores by the park. Later that night, Petitioner found J.C. and told him that he
was ordered to take J.C. to the Detention Center as a runaway. J.C. got in Petitioner’s car again, but
instead of taking him to the Detention Center, Petitioner drove J.C. back to his house in Bellevue.

        That night, Petitioner ordered a pizza. After they finished eating, J.C. told Petitioner not to
bother him, but Petitioner again held J.C. down and engaged first in fellatio then forced J.C. to
penetrate him anally. After Petitioner was through, someone knocked on the front door, and
Petitioner told J.C. to get in a closet. Instead, J.C. stood at the top of the stairs and listened to the
men’s conversation about swapping police radios and an upcoming party. After the man left, J.C.
wrapped himself in a sheet so that Petitioner could not bother him again and went to sleep.

        The next morning, Petitioner gave J.C. another set of clothes and then dropped him off at the
Vanderbilt University campus where J.C. spent the day. Toward the end of the afternoon, J.C.
walked back to Riverfront Park where he tried to find someone to help him. Later that night, J.C.
told two men that he was supposed to meet his brother at Riverfront Park but he had not shown up.
The men drove J.C. toward Bellevue ostensibly to find J.C.’s brother, but J.C. intended to tell them
Petitioner had abused him when they reached Petitioner’s house.

        Eventually, when J.C. could not find Petitioner’s house, the men drove him back downtown
to the police station. The first police officer they encountered told the men to take J.C. back to
Riverfront Park, and if J.C. was indeed a runaway, the police officer would go pick him up later.
The men were reluctant to leave J.C. by himself and convinced J.C. to go with them to the Criminal
Justice Building. By this time, J.C. was crying, and he was still crying while Officer Nicolas Marino
attempted to find out who he was. Officer Marino brought J.C. something to eat and drink. J.C. told
the officer a variety of stories but finally the police officers received information from Kentucky as
to J.C.’s identity, and they confirmed that he was a runaway. As part of the booking process, the
officer asked J.C. if anyone had abused him since he had run away. J.C. told him about Petitioner
and gave a general description of “Mike.” J.C. also said that “Mike” was a Metro Police Officer.
J.C. was able to provide a detailed description of the inside of Petitioner’s house and a general idea
of where Petitioner’s house was located.

       Detective David Miller was called in to investigate J.C.’s allegations. He and J.C. drove
toward Bellevue, and with the help of other officers in the area were able to locate Petitioner’s house.


                                                  -3-
When they arrived at the condominium, the vehicle J.C. described was parked in front of the house.
One of the officers stayed with J.C. in the car as Detective Miller and Sergeant Mark Chestnut
approached the front door. Another uniformed officer went to the back of the house. When
Petitioner opened the door, Sergeant Chestnut recognized him as a police officer.

        J.C. indicated from the car that this was the man he had described, and the officers informed
Petitioner about the allegations. Petitioner permitted the officers to search his house, and the officers
verified that the premises matched J.C.’s description. Petitioner denied knowing J.C. but did admit
that the boy was wearing his clothes. Petitioner said he did not know how J.C. got the clothes.

        J.C.’s fingerprints were found on a bottle of cologne inside Petitioner’s house and on the
passenger side of Petitioner’s car. A pair of shorts and a tee-shirt were retrieved from Petitioner’s
clothes hamper and sent for testing. The lab was unable to test the tee-shirt, and the shorts revealed
many stains, including a semen stain that could have been from J.C. Samples of J.C.’s and
Petitioner’s saliva were determined to be indistinguishable.

         Alberta Harris testified that she called Petitioner’s house on July 28, the morning after J.C.
first stayed with Petitioner, to tell Petitioner that his new police radio was ready to be picked up. She
said that a young male answered the telephone, that she asked to speak to Petitioner, and Petitioner
then came to the telephone.

        Jeffrey White testified that he went to Petitioner’s house between eleven o’clock and twelve
o’clock in July, 1992 to discuss obtaining a new police radio for Petitioner and an upcoming party
they planned to attend. Petitioner was dressed only in boxer shorts and seemed anxious for Mr.
White to leave.

        Petitioner also testified in his own defense. He stated that in July, 1992, he had been with
the Metro Nashville Police Department for four months and was still on probation. Petitioner
confirmed that he had spoken with Ms. Harris on July 28, but the man who answered the telephone
was a friend of his, Daryl Witkowski. Mr. Witkowski had spent the previous night with Petitioner
as he had on other occasions. Mr. Witkowski knew how to gain access to the house when Petitioner
was not there and had permission to drive Petitioner’s car. In 1992, Mr. Witkowski was in his early
twenties and was of a similar height and weight as Petitioner with a receding hairline like
Petitioner’s.

        Petitioner testified that the first time he saw J.C. was at his house in the company of police
officers. He admitted that J.C. was wearing his clothes at that time but said he did not know how
J.C. acquired the clothes or knew about his conversation with Jeff White. Petitioner stated that he
had never invited J.C. into his home and did not know how J.C. could describe the condominium’s
interior in such detail. During the investigation, Petitioner voluntarily consented to the search of his
car and condominium and underwent a rape analysis.

        Based on this evidence, Petitioner was convicted of two counts of rape.


                                                  -4-
        On March 30, 2001, Petitioner filed a petition for post-conviction relief. After counsel was
appointed, his petition was amended and alleged that Petitioner received ineffective assistance of
counsel at trial. Petitioner asserts that his counsel's conduct was deficient because counsel failed to
(1) adequately advise Petitioner as to the consequences of proceeding to trial rather than accepting
the plea agreement offered by the State; (2) request an instruction by the trial court as to assault and
sexual battery as lesser-included offenses of rape; (3) adequately argue that the victim consented to
the rapes which would support a jury instruction on statutory rape; (4) file a motion for a bill of
particulars prior to trial; (5) request that the State make an election of offenses at the conclusion of
the State's proof; (6) effectively impeach the credibility of the victim at Petitioner's second trial; and
(7) preserve and appeal issues two, four, and five. Petitioner did not challenge his two convictions
for official misconduct at the post-conviction hearing. Petitioner was represented by the same
counsel at trial and on appeal.

         At the post-conviction hearing, Petitioner called his father, Bobby Walton, as a witness and
also testified on his own behalf. The State called as a witness Lionel Barrett, Jr., Petitioner’s counsel
at trial and on appeal.

        Petitioner testified that Mr. Barrett gave him erroneous and inaccurate information
concerning the consequences of proceeding to trial rather than accepting the State’s plea bargain
offer. In its offer, the State agreed to drop the rape charges if Petitioner would enter a plea of no
contest on two counts of misdemeanor official misconduct. If Petitioner accepted the offer, he
would receive a sentence of eleven months, twenty-nine days, which would be served on probation.
When considering whether to accept the offer, both Petitioner and his father, Bobby Walton, said
that Mr. Barrett advised Petitioner that the State had little evidence against him and that Petitioner’s
chances at trial were good. Moreover, even if Petitioner were convicted, Mr. Barrett told Petitioner
that he would only have to serve thirty percent of his sentence as a Range I, standard offender before
he was eligible for parole. Petitioner understood this to mean that in the event he was convicted he
would only have to serve two to three years. Because of his lack of prior convictions and his service
as a police officer, Mr. Barrett believed Petitioner would be granted parole as soon as he was
eligible. Based on this information and the desire to clear his name, Petitioner decided to reject the
State’s plea bargain offer and proceed to trial.

        Petitioner said that he first learned that he would be required to serve 100% of his sentence
as a multiple rapist after he arrived at the Tennessee Department of Correction. He testified that Mr.
Barrett had never advised him that if he were convicted on both counts of rape, Petitioner would be
classified as a multiple rapist without the possibility of parole or the ability to earn sentence
reduction credits. Petitioner thought that the imposition of a 100% sentence was a mistake, and he
contacted Mr. Barrett to assist him in correcting the matter. Mr. Barrett responded that he would
look into the Department of Correction files and determine how Petitioner’s sentence was actually
calculated.

       On cross-examination, Petitioner denied that Mr. Barrett had begged him to accept the State’s
plea bargain offer. Petitioner also denied that his family had been instrumental in his decision to


                                                   -5-
proceed to trial, or that they wanted him to reject the offer primarily because his family, and
particularly his mother, was unwilling to believe that Petitioner was guilty of the offenses.

        Petitioner next testified that Mr. Barrett had never explained to him that the offense of rape,
as charged against Petitioner, could include both anal and oral sex. The State introduced evidence
of two acts of anal sex and two acts of fellatio, yet only charged Petitioner with two counts of rape.
Petitioner said that he did not learn that Mr. Barrett could have required the State to elect which
offenses it was proceeding on until after the trial. Mr. Barrett’s failure to request an election of
offenses, Petitioner believed, cast doubt on the unanimity of the jury’s vote because some of the
members could have convicted him based on the anal penetration, and others on the act of fellatio,
as to each count of rape.

         Petitioner also alleged that Mr. Barrett was deficient for not effectively impeaching the
credibility of the victim at Petitioner’s second trial on the two counts of rape. J.C. testified at both
trials, but added certain information at the second trial that had not been mentioned at the first trial.
J.C. testified that Petitioner told him he had to have sex with Petitioner as payment for the food
bought by Petitioner. Petitioner said that Mr. Barrett did not bring the discrepancy in J.C.’s
testimony to the attention of the jury. On cross-examination, Petitioner admitted that Mr. Barrett had
elicited testimony that J.C. had lied repeatedly to the police officers and to the two men who found
him at Riverfront Park. Mr. Barrett was also able to demonstrate to the jury that the victim was a
persistent runaway who had stolen a car in order to get from Kentucky to Nashville.

        Mr. Barrett testified that he had strongly urged Petitioner at three or four meetings to accept
the plea bargain offer because the State’s evidence against Petitioner was significant. Petitioner,
however, consistently denied that he had any association with the victim and was unwilling to plead
to any offense that was based on his alleged sexual misconduct. Mr. Barrett said that the decision
to go to trial was made primarily by Petitioner and his mother, and they were adamant that Petitioner
not plead guilty to a sexual misconduct charge. Mr. Barrett also said that he warned Petitioner that
the parole board would likely consider the fact that the rapes were committed while Petitioner was
dressed in his police uniform as a negative factor. Considering all of the circumstances under which
the offenses were committed, Mr. Barrett said that he was pleased that the length of the sentences
imposed by the trial court were at the minimum or low end of the range of punishment and
considered the sentences very fair.

        Mr. Barrett could not remember whether he had discussed the possibility that Petitioner
would be sentenced as a multiple rapist if the jury convicted him on both counts of rape. After the
trial court sentenced Petitioner as a Range I, standard offender, Mr. Barrett was aware that the
judgment could be amended to classify Petitioner as a multiple rapist and believed he had discussed
the possibility with Petitioner.

       Mr. Barrett said that he did not think to ask for an election of offenses. However, in
hindsight, Mr. Barrett said that he did not consider an election necessary and perhaps even ill-advised
because Petitioner denied any sexual contact with the victim. Mr. Barrett said that either the jury


                                                  -6-
believed Petitioner or they believed the victim. In addition, Mr. Barrett did not file a bill of
particulars because Mr. Barrett believed that the State was very forthcoming with the evidence they
had collected.

       Mr. Barrett stated that he could not specifically remember the embellishment in J.C.’s
testimony but remembered assailing his credibility at every opportunity.

         After the evidentiary hearing, the post-conviction court found that Petitioner had failed to
show by clear and convincing evidence that counsel had provided ineffective assistance of counsel
in advising Petitioner as to the consequences of a conviction for rape. In addition, the post-
conviction court found that an election of offenses, based on the facts before it, was not necessary,
and Petitioner’s allegation based on this issue was without merit. Finally, the post-conviction court
found that the evidence established that Mr. Barrett ably attacked the victim’s credibility at trial.
Petitioner, therefore, failed to establish that he had been prejudiced by Mr. Barrett’s failure to call
to the jury’s attention the single discrepancy in the victim’s testimony between the first and second
trials. Accordingly, the post-conviction court denied Petitioner’s petition for post-conviction relief.

                                      II. Standard of Review

        The Sixth Amendment to the United States Constitution and Article I, § 9 of the Tennessee
Constitution guarantee an accused the right to representation by counsel. State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999). In order to prevail on a claim of ineffectiveness of counsel, a petitioner must
establish by clear and convincing evidence that (1) the conduct of petitioner’s counsel fell below “the
range of competence demanded of attorneys in criminal cases,” and (2) that petitioner was adversely
affected by counsel’s deficient performance. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975);
Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1974). In order to
establish prejudice, the petitioner must show that there is a reasonable possibility that the outcome
of the proceedings would have been different but for the ineffective assistance of counsel. Id., 466
U.S. at 694, 104 S. Ct. at 2068. Because the petitioner must establish both deficient conduct and
prejudice, relief will be denied if petitioner fails to prove either component. Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996).

       The post-conviction court’s findings of fact underlying a claim of ineffective assistance of
counsel are reviewed de novo with a presumption that the findings are correct unless the
preponderance of the evidence establishes otherwise. Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001). However, the application of the law to the court’s factual findings, such as whether counsel’s
conduct was deficient or whether the petitioner was prejudiced, is reviewed de novo with no
presumption of correctness. Id.




                                                 -7-
                               III. Ineffective Assistance of Counsel
A. Pre-Trial Advice

         Petitioner alleges first that trial counsel’s failure to advise Petitioner prior to trial that he
would be sentenced as a multiple rapist if convicted of both counts of rape fell below the objective
standard of competence required of criminal lawyers. Both Petitioner and his father testified that
trial counsel advised Petitioner that the maximum punishment he faced if convicted of rape was eight
to twelve years, of which Petitioner would have to serve 30% before he was eligible for parole. If
trial counsel had advised him that he would be classified as a multiple rapist and required to serve
his entire sentence if convicted of both counts of rape, Petitioner contends he would have accepted
the State’s plea bargain offer. Mr. Barrett testified that he strongly advised Petitioner to accept the
State’s offer over the course of three or four meetings, but that Petitioner and his family were
adamant about not accepting a plea agreement based on the acceptance of a charge involving sexual
misconduct. Mr. Barrett stated that he could not recall whether he advised Petitioner that he could
be classified as a multiple rapist if convicted of both counts. However, Mr. Barrett advised
Petitioner that the State’s case was strong, and that Petitioner’s status as a police officer when the
offenses were committed would not be viewed favorably by the parole board.

        Based on the evidence presented at the evidentiary hearing, the post-conviction court found
that Petitioner had not established the ineffectiveness of his counsel’s conduct by clear and
convincing evidence. In reaching this finding, the post-conviction court accredited Mr. Barrett’s
testimony that he had strongly urged Petitioner to accept the State’s plea agreement offer. The trial
court concluded from the testimony that Petitioner apparently had no intention of admitting liability
for sexual misconduct under any circumstances and was supported by his family in his decision to
proceed to trial. Moreover, the post-conviction court noted that Petitioner’s training gave him more
experience with the legal system than the average person.

        In a criminal proceeding, the accused may plead guilty, not guilty, or nolo contendere. Tenn.
R. Crim. P. 11(a); Parham v. State, 885 S.W.2d 375, 379 (Tenn. Crim. App. 1994). The right to
plead not guilty constitutionally includes the right to plead guilty, and both pleas must be available
to the accused in a criminal case. Lawrence v. State, 455 S.W.2d 650 (Tenn. Crim. App. 1970). A
plea must represent an intelligent and voluntary choice among the possible alternative courses of
action available to the accused. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting
North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970). In
determining whether a plea is voluntary, the reviewing court must look to such factors as “the
relative intelligence of the defendant; the degree of his familiarity with criminal proceedings;
whether he was represented by competent counsel and had the opportunity to confer with counsel
about the options; the extent of advice from counsel and the court concerning the charges against
him; and the reasons for his decision” to plead guilty or not guilty. Blankenship, 858 S.W.2d at 904,
citing Caudill v. Jago, 747 F.2d 1046, 1052 (6th Cir. 1984).

        Here, the post-conviction court accredited the testimony of Mr. Barrett and determined that
Petitioner was not denied the effective assistance of counsel in determining whether to enter into a


                                                   -8-
plea agreement or proceed to trial, and that Petitioner’s decision to reject the State’s plea agreement
offer was made intelligently and voluntarily. The evidence in the record does not preponderate
against this finding, and Petitioner is not entitled to relief on this issue.

B. Inadequate Cross-Examination

        Petitioner alleges that his counsel failed to adequately cross-examine J.C. on the
discrepancies between J.C.’s testimony in the first trial and that given at Petitioner’s second trial.
Specifically, Petitioner points out that J.C. testified at the second trial that Petitioner told J.C. he had
to have sex with Petitioner as payment for the food Petitioner had bought. J.C. had not mentioned
this fact at the first trial although he testified that he had no money and was hungry. The post-
conviction court concluded that Mr. Barrett had ably attacked J.C.’s credibility at both trials, and that
Petitioner failed to carry his burden of proving that he was prejudiced by Mr. Barrett’s failure to
specifically address this single incident of inconsistency.

        The record does not indicate that Mr. Barrett’s failure to address J.C.’s comment was a trial
strategy based on inadequate preparation as Petitioner suggests. At the post-conviction hearing, Mr.
Barrett testified that he simply did not recall that specific piece of testimony. However, Mr. Barrett
also noted that he had explored in depth J.C.’s family and criminal background as well as the various
stories he told law enforcement officials about the incidents on July 27 and July 28. Based on the
record, we do not find that the evidence preponderates against the post-conviction court’s finding
that Petitioner failed to show prejudice.

C. Election of Offenses

         Finally, Petitioner alleges that his counsel rendered ineffective assistance of counsel when
he failed to request the State to make an election as to which offenses it was relying upon to sustain
Petitioner’s two convictions for rape. Petitioner contends also that counsel’s performance was
deficient when he failed to raise the issue on appeal. In support of his allegation, Petitioner argues
that the State introduced evidence as to four distinct and separate offenses, each of which, if proved,
could independently support a conviction of rape. Because the State charged Petitioner with only
two counts of rape, Petitioner contends that the State was required to elect which of the four offenses
it was relying upon to sustain Petitioner’s convictions under the Tennessee Supreme Court’s decision
in State v. Kendrick, 38 S.W.3d 566 (Tenn. 2001).

         At the post-conviction hearing, the State essentially conceded that an election was warranted,
but it argued that Petitioner had not shown that he was prejudiced by his counsel’s failure to ensure
that an election was made by the State. The post-conviction court, however, concluded that an
election was not required under the facts presented in the case and denied Petitioner’s request for
post-conviction relief on this issue. We have carefully reviewed both the trial and post-conviction
transcripts as well as the parties’ arguments in this matter. For the following reasons, we find that
Petitioner’s counsel rendered ineffective assistance when he failed to request an election of offenses
at the conclusion of the State’s proof and again when he failed to raise the issue on appeal. Based


                                                    -9-
on the facts in this case, the State should have elected whether it was proceeding on the act of anal
intercourse or the act of fellatio to sustain Petitioner’s conviction for the alleged offense occurring
July 27, 1992, and whether Petitioner’s conviction for the alleged offense occurring on July 28, 1992
was based on the act of anal intercourse or the act of fellatio. Further, we find that Petitioner has met
his burden of showing that he was prejudiced by such actions.

        The election of offense doctrine has been addressed by the courts of this state on numerous
occasions and was certainly an established concept at the time of Petitioner’s trial. See State v.
Shelton, 851 S.W.2d 134 (Tenn. 1993); State v. Brown, 762 S.W.2d 135 (Tenn. 1988); Burlison v.
State, 501 S.W.2d 801 (Tenn. 1973); State v. Brown, 823 S.W.2d 576 (Tenn. Crim. App. 1991). In
general, “when the evidence indicates that the defendant has committed multiple offenses against
a victim, 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). The election is primarily
intended to protect the defendant’s right to a unanimous jury trial that is required under our state
constitution. Id.; Shelton, 851 S.W.2d at 137; Tidwell v. State, 922 S.W.2d 497, 501 (Tenn. 1996).
Whenever the State shows evidence of more offenses than the particular offense or offenses charged
against the defendant, there is always a concern that some jurors will convict based on the existence
of one offense, and others on the existence of an entirely different offense. See Shelton, 851 S.W.2d
at 137. In effect, each juror is left to his or her own devices to determine “the act(s) of abuse upon
which to base a verdict.” State v. Walton, 958 S.W.2d 724, 727-728 (Tenn. 1997). This result has
been aptly described variously as a “patchwork verdict” and a “‘grab bag’ theory of justice.” Brown,
823 S.W.2d at 583, (quoting United States v. Duncan, 850 F.2d 1104, 1110 (6th Cir. 1988)); Tidwell,
922 S.W.2d at 501.

        Because the election requirement is “fundamental, immediately touching the constitutional
rights of the accused,” an election of offenses is mandated whether or not the defendant requests an
election. Burlison, 501 S.W.2d at 804. Rather, it is incumbent upon the trial court even absent a
request from the defendant to ensure that the State properly makes an election in order to avoid a
“‘patchwork verdict’ based on different offenses in evidence.” Shelton, 851 S.W.2d at 137.

        In 1993, the Davidson County grand jury, in two separate indictments, one for July 27, 1992
and the other for July 28, 1992, found that Petitioner “did engage in unlawful sexual penetration of
[J.C.] and force or coercion was used to accomplish the act, in violation of Tennessee Code
Annotated § 39-13-503.” Neither indictment identified the offense by a particular type of
penetration, although the term “sexual penetration” as relevant here, includes both anal intercourse
and fellatio. Tenn. Code Ann. § 39-13-501(7).

       At trial, J.C. testified that on July 27, 1992, Petitioner approached J.C.’s bed while he was
sleeping and began to rub his penis with his hand. J.C. woke up and began struggling, but Petitioner
held J.C. down on the bed with his arms and legs while he engaged in fellatio. Petitioner then
changed positions and forced J.C. to penetrate him anally. No testimony was provided concerning
how long either of the incidents lasted or as to the amount of time that elapsed between the first
sexual act and the second. Both acts were repeated on the night of July 28. That is, Petitioner


                                                  -10-
forcibly held J.C. down while he first engaged in fellatio, then changed positions and forced J.C. to
participate in anal intercourse. Once again, J.C. did not indicate the lapse between these acts.

        At the post-conviction hearing, Petitioner relied on Kendrick to support his position that Mr.
Barrett should have requested an election of offenses. The post-conviction court, however,
concluded that an election of offenses was unnecessary in Petitioner’s case because the two acts on
each night occurred within a short span of time. See State v. Johnson, 53 S.W.3d 628 (Tenn. 2001)
and State v. Hodges, 7 S.W.3d 609 (Tenn. 1998). In the court’s view, the act of anal intercourse
immediately followed the act of fellatio which presumably led the post-conviction court to conclude
that only one offense occurred under the rationale of Johnson. In addition, the post-conviction court
observed that J.C., at thirteen, was not the “type of victim” that usually generates a need for an
election of offenses. First, Petitioner’s offenses occurred within two days rather than the months or
even years usually encountered in child sexual abuse cases. In addition, unlike cases involving a
victim too young to identify a particular offense by a specific date, J.C., who was sixteen at the time
of Petitioner’s second trial, was very clear in his testimony as to what offenses occurred when.
Accordingly, the post-conviction court found Petitioner’s claim on this issue without merit.

        Initially, we observe that an election of offenses does often arise in the context of sexual
offenses against young children who have difficulty not only articulating the type of abuse they have
endured but also with identifying the offense by date or time. See e.g. Walton, 958 S.W.2d at 726
(victim was in kindergarten when her father’s abuse started); Shelton, 851 S.W.2d. at 138-139
(victims included two seven-year-olds and one six-year-old). However, it is equally clear that an
election is not limited to cases where the victim is below a certain age. In Kendrick, for example, the
victim was an adult. State v. Kendrick, 38 S.W.3d 566 (Tenn. 2001). Moreover, an election of
offenses certainly may be necessary outside the child sexual abuse arena. This Court’s decision in
Brown, for example, involved the failure of the State to specify which acts it was relying on to
convict the defendant of possession of a controlled substance. State v. Brown, 823 S.W.2d 576
(Tenn. Crim. App. 1991). As noted above, the State must make an election of offenses any time it
offers proof of more offenses than the number charged against the defendant. See State v. Brown,
992 S.W.2d 389 (Tenn. 1999). Therefore, the fact that J.C. at trial was a composed, articulate
witness does not dispose of Petitioner’s claim of ineffective assistance of counsel.

        The post-conviction court’s reliance on the Tennessee Supreme Court’s decisions in Johnson
and Hodges is also misplaced. In Hodges, a felony murder case, the supreme court concluded that
the State need not elect which theory it is relying upon to sustain the defendant’s conviction when
it advances more than one theory of culpability to the jury. Hodges, 7 S.W.3d at 624. Similarly, in
Johnson, the court found that the State does not have to elect which of the facts presented at trial it
is relying upon to prove an element of the charged offense. Johnson, 53 S.W.3d at 633. In both
cases, however, the defendant was charged with one offense, and the State offered proof of the
existence of one offense. Whether the jury believed the defendant was guilty under one theory of
culpability over another, or that one fact more clearly established an element of the crime than
another, the jury could unanimously agree that the defendant was guilty of the charged offense.



                                                 -11-
        In the case sub judice, the victim’s testimony clearly established the elements necessary to
find the existence of four distinct and separate offenses of unlawful penetration, each of which met
the description of the charged offense in the indictments. The Johnson court specifically
distinguished offenses involving sexual battery from those in which an unlawful penetration has
occurred. Johnson, 53 S.W.3d at 634. Sexual battery, by definition, envisions that the improper
sexual contact necessary to sustain a conviction may involve more than one unlawful touching.
Therefore, “[if] the entire incidence of sexual contact occurs quickly and virtually simultaneously,
then only one [sexual battery] has occurred, even if more than one touching has occurred.” Id. at
633. However, “generally rape is not a continuous offense, but each act of intercourse constitutes
a distinct and separate offense.’” Phillips, 924 S.W.2d 662, 664, (quoting 75 C.J.S. Rape § 4 (1952
& Supp. 1995)).

        More relevant to Petitioner’s case is the Tennessee Supreme Court’s decision in State v.
Kendrick. 38 S.W.3d 566 (Tenn. 2001). In Kendrick, the defendant forced the victim into his car
and proceeded to drive around the vicinity. Eventually, the defendant stopped and forced the victim
to perform fellatio on him. He then drove for another five or ten minutes before stopping again and
forcing the victim to engage in vaginal intercourse. The State charged the defendant with one count
of aggravated rape. The defendant challenged his conviction, alleging that the State’s failure to elect
which incidence of aggravated rape it was relying upon to convict the defendant was plain error
entitling him to a new trial. The supreme court agreed.

        The supreme court first observed that “[t]his Court has long and consistently held that ‘when
the evidence indicates [that] the defendant has committed multiple offenses against a victim, the
prosecution must elect the particular offense as charged in the indictment for which the conviction
is sought.’” Id. at 568 (quoting State v. Brown, 922 S.W.2d 389, 391 (Tenn. 1999)). Without an
election of offenses, the defendant’s constitutional right to a unanimous jury trial is compromised.
Id.

        The Kendrick court rejected the State’s argument that the acts of fellatio and vaginal
intercourse were so close in time as to constitute one continuous offense. The definition of “sexual
penetration” specifically lists both acts as separate offenses. Id. at 568-569; Tenn. Code Ann. § 39-
13-501(7). When faced with the presence of more than one sexual offense, the following factors are
relevant in determining whether the acts represent multiple offenses each capable of sustaining a
conviction or one single violation: “the nature of the acts; the area of the victim’s body invaded by
the sexually assaultive behavior; the time elapsed between the distinct conduct; the accused’s intent;
and the cumulative punishment imposed.” Id. at 569 (quoting State v. Phillips, 924 S.W.2d at 665).
Under this analysis, the acts of fellatio and vaginal intercourse present in Kendrick were separate,
distinct offenses mandating an election of offenses. Id. Accordingly, the State’s failure to elect the
offense for which it sought conviction violated the defendant’s right to a unanimous jury trial. Id.
at 570.

        In the case sub judice, J.C. testified that Petitioner engaged in fellatio, then anal intercourse
on July 27, and repeated both acts on July 28. Each act required a different position and a different


                                                  -12-
orifice. See Phillips, 924 S.W.2d at 665. Further, each act required a “purposeful act” of Petitioner
and was “capable of producing its own attendant fear, humiliation, pain and damage to the victim.”
Id. Therefore, we conclude that the two unlawful sexual penetrations perpetrated against J.C. on two
consecutive nights constitute four separate offenses. Accordingly, an election of offenses was
mandatory, and the State was required to elect whether it was proceeding on the act of anal
intercourse or the act of fellatio to sustain Petitioner’s conviction for the alleged offense occurring
on July 27, and whether it was proceeding on the act of anal intercourse or the act of fellatio to
sustain Petitioner’s conviction for the alleged offense occurring on July 28. Counsel’s failure to
request an election or raise the State’s failure to make an election of offenses on appeal constitutes
ineffective assistance of counsel.

         Although we conclude that counsel’s conduct was deficient at trial and on appeal, a petitioner
raising a claim of ineffective assistance of counsel in a post-conviction proceeding must also show
that he was prejudiced by his counsel’s deficient conduct. Strickland, 466 U.S. at 694, 104 S. Ct.
2068. That is, his counsel’s ineffective assistance must undermine our confidence in the reliability
of the trial’s outcome. Id. The State argues that Petitioner was not prejudiced by the failure to elect
offenses because he denied any involvement, sexual or otherwise, with the victim. In other words,
either the jury believed the victim totally or they believed Petitioner. An election, the State contends,
would have made no difference in the result. Mr. Barrett, at the post-conviction hearing, echoed the
State’s argument, observing that an election in a case where the defendant pleads innocent is
essentially academic. Notwithstanding counsel’s hindsight, Mr. Barrett testified that he simply did
not consider requesting an election of offenses.

        The State’s position is not supported by case law. In Kendrick, the court specifically rejected
“the State’s argument that the failure to comply with the election requirement was harmless simply
because the jury rejected the defendant’s alibi defense and accredited the victim’s testimony.”
Kendrick, 38 S.W.3d at 569. In Kendrick, the court quoted Shelton that:

                It has been suggested that when a defendant denies all sexual contact with the
        victim, but the proof is sufficient to support guilty verdicts beyond a reasonable
        doubt on all of the offenses in evidence, an election is unnecessary . . . . [A]n
        appellate court’s finding that the evidence is sufficient to support convictions for any
        of the offenses in evidence is an inadequate substitute for a jury’s deliberation over
        identified offenses.”

Id. (quoting Shelton, 851 S.W.2d at 138.) See also Tidwell, 922 S.W.2d at 502.

        A not guilty plea does not release the defense counsel, the trial court, or the prosecutor from
an obligation to ensure that an accused’s right to a unanimous jury verdict is safeguarded. Indeed,
regardless of the defendant’s not guilty plea, the fact that the State proves every offense offered into
evidence is the very situation that mandates an election. Tidwell, 922 S.W.2d at 501. This approach
is exactly the “‘grab bag’ theory of justice” that an election of offenses avoids. Id. “Because all such



                                                  -13-
offenses will have been ‘proven,’ the jury may, in effect, reach into the brimming bag of offenses
and pull out one for each count.” Id.

         In the case sub judice, the jury had the opportunity to observe the demeanor and body
language of both Petitioner and J.C. as they testified about the events occurring on July 27 and July
28, 1992. The State also introduced physical evidence as to the four offenses which varied as to the
materials tested and the quality of the results. From the facts and record, we cannot conclude that
the jury unanimously arrived at its verdict by each juror finding the existence of the same offense
beyond a reasonable doubt. Accordingly, our confidence in the reliability of the trial result has been
undermined. See Tidwell, 922 S.W.2d at 502.

       It is also important to note that had defense counsel raised this issue on appeal, either through
a motion for a new trial or as plain error, the case law indicates that a reversal of Petitioner’s
convictions would have been warranted. See State v. Kendrick, 38 S.W.3d 566 (Tenn. 2001)
(prosecutor’s failure to elect offenses constituted plain error). See also State v. Walton, 958 S.W.2d
724 (Tenn. 1997); State v. Shelton, 851 S.W.2d 134 (Tenn. 1993); Burlison v. State, 501 S.W.2d 801
(Tenn. 1993); State v. Hoyt, 928 S.W.2d 935 (Tenn. Crim. App. 1995).

        The result of counsel’s deficient conduct in this matter could have easily been avoided if the
trial court had required the State to make an election or the State, on its own initiative, had followed
the dictates of well-established case law and spoken up to make an election of a particular offense
for each charge. This is not a matter of the trial court or the prosecutor doing the trial counsel’s job.
The necessity of requiring the State to make an election of offenses is constitutionally driven.
Burlison, 501 S.W.2d at 804. Once the State has introduced evidence of multiple offenses, the trial
court has the duty to require the State to make an election of offenses. Id.

        As this Court has previously observed when faced with a similar failure to elect offenses:

                We note, not for the first time, that the results of cases such as this are all the
        more tragic because often they are easily preventable. The appellate courts have
        repeatedly held that the State must elect between multiple offenses, and the appellate
        courts have repeatedly emphasized that trial judges must ensure that the election is
        properly made. (Cites omitted). It has been twenty-seven years since Burlison was
        decided. There is absolutely no reason in a case such as this for the State to fail to
        properly elect between offenses and for the trial court to fail to inform the jury of the
        election.

State v. Herring, 2000 Tenn. Crim. App. LEXIS 684, No. M1999-00776-CCA-R3-CD (Tenn. Crim.
App., Nashville, 2000), perm. to appeal denied (Tenn. 2001).




                                                   -14-
                                          CONCLUSION

        We affirm the post-conviction court’s judgment denying post-conviction relief to Petitioner
on the basis that his counsel rendered ineffective assistance in providing accurate trial advice and
adequately cross-examining the victim. We reverse the judgment of the post-conviction court
finding that counsel’s conduct was not deficient for failing to request an election of offenses or raise
the State’s failure to make an election on appeal and that Petitioner was not prejudiced by such
omission. Accordingly, Petitioner’s convictions for rape are set aside, and the charges are remanded
for a new trial.

                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




                                                 -15-
