            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                         AT JACKSON
                             Assigned on Briefs August 7, 2001

            STATE OF TENNESSEE v. EDDIE HOWARD PITTMAN

                 Direct Appeal from the Criminal Court for Madison County
                            No. 00-415 Roger A. Page, Judge


                  No. W2000-01582-CCA-R3-CD - Filed September 7, 2001



The defendant appeals his convictions for attempted second degree murder and felony possession
of a weapon, arguing that he was denied his right to a unanimous jury verdict by the trial court’s
failure to require the prosecution to make an election of facts supporting the attempted murder. After
a thorough review of the record, we conclude that neither an election nor enhanced unanimity
instruction was required. Thus, we affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN E. GLENN,
JJ., joined.

George Morton Googe, District Public Defender (at trial and on appeal); Michael D. Rasnake,
Assistant District Public Defender (at trial and on appeal); and C. Michael Robbins, Memphis,
Tennessee (on appeal), for the appellant, Eddie Howard Pittman.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        The state’s proof at trial revealed that on May 20, 1999, Gregory Luster and his wife, Becky
Luster, returned home and noticed that the front door to their home was open. Gregory Luster
walked up the front steps and saw the defendant in the house. The defendant, who was the former
boyfriend of Becky Luster, walked out of the house carrying a pistol and said, “Man, what are you
doing marrying my woman? You know that’s my woman.” He pointed the gun at Luster’s head and
pulled the trigger. The weapon made a noise, but did not fire. Luster ran toward the defendant, and
the men wrestled for the gun. Then Luster broke free and dove through the front door of his home
as the defendant fired a shot through the door. The bullet missed Luster, striking a wall inside the
home.

       The defendant denied the incident occurred and testified he did not see the victim on that day.

        The defendant argues the state’s proof established that the defendant committed two separate
and distinct acts; namely, (1) pointing the pistol at Luster when the gun misfired, and (2) firing the
weapon through the door as Luster entered the house. He claims each act could form the basis for
the jury’s finding of guilt as to attempted second degree murder; therefore, the trial court erred in
not requiring the state to elect which act it was relying upon in seeking a conviction for attempted
murder.


                                             WAIVER

        The record before this court does not specifically reflect that the defendant moved the trial
court for such an election at trial; thus, the state contends this issue is waived. However, the trial
court stated at the hearing on the motion for new trial that the defendant made such a request before
the case was submitted to the jury. Even if the defendant had failed to request an election, the issue
is properly before this court. It is the responsibility of the prosecution and the trial court to ensure
that an election of offenses is made where necessary, and failure to do so is plain error. State v.
Kendrick, 38 S.W.3d 566, 569 (Tenn. 2001).


                ELECTION AND ENHANCED UNANIMITY INSTRUCTION

        The doctrine of election requires the state to elect a set of facts when it has charged a
defendant with one offense, but there is evidence of multiple offenses. State v. Brown, 992 S.W.2d
389, 391 (Tenn. 1999). This doctrine is applied to ensure that the defendant can prepare for the
specific charge, to protect the defendant from double jeopardy, and to ensure that some jurors do not
convict on one offense and other jurors on another. State v. Shelton, 851 S.W.2d 134, 137 (Tenn.
1993). Issues of jury unanimity usually arise where the state presents evidence showing more than
one criminal offense, but the underlying charging instrument lacks specificity as to the offense for
which the accused is being tried. State v. Brown, 762 S.W.2d 135, 136-37 (Tenn. 1988). When the
evidence does not establish that multiple offenses were committed, the need for election never arises.
State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000).

        There may also be times when a single offense is charged, but there is evidence of different
acts with each act being sufficient to support a conviction for the charged offense. Recently, our
supreme court has ruled that there is no requirement for an election nor enhanced unanimity
instruction as to facts supporting a particular element of the crime; provided, the jury agrees that the
defendant is guilty of the crime charged. State v. Johnson, ___ S.W.3d ___, ___, slip. op. at 6 (Tenn.
filed August 22, 2001, at Nashville); see also Adams, 24 S.W.3d at 297.

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                        MULTIPLE OFFENSES V. SINGLE OFFENSE

       The key issue in this case is whether the proof submitted to the jury established more than one
criminal offense or act such that either the state was required to make an election, or the trial court
was required to augment the general unanimity instruction.

        In State v. Pelayo, 881 S.W.2d 7 (Tenn. Crim. App. 1994), the defendant stabbed the victim,
the victim fled, and the defendant stabbed her again. This court reasoned that the victim’s attempt
to escape did not divide the assaults into multiple crimes. Id. at 13. While the assaults were separated
by time and place, they “coalesced into an ‘unmistakable single act.’” Id. Likewise, in the instant
case, the misfiring of the weapon and the victim’s momentary escape from the defendant did not
divide the defendant’s attempts to shoot the victim into separate offenses. Rather, the misfire and the
actual shot fired at the victim were part of a single offense.

        We conclude this case is controlled by the recent supreme court opinion in Johnson, supra.
In Johnson the defendant was convicted of sexual battery, and the evidence established that he
unlawfully touched the victim both on her breast and between her legs. The court found only one
offense was committed; there was no need for an election; and there was no requirement for an
enhanced unanimity instruction. Johnson, ___ S.W.3d at ___, slip. op. at 8. In its opinion the court
cited Pelayo, noting that a defendant in an assault case could not be convicted of multiple offenses
for each blow struck where the entire assault occurs in a matter of minutes. Id. at ___, slip op. at 7.

        In the case at bar, the misfire and the subsequent firing of the weapon occurred within
moments of each other, were part of a continuous assault, and constituted but one offense of
attempted murder. These two acts related to the element of the offense requiring that the defendant
act with the intent to commit murder. See Tenn. Code Ann. § 39-12-101(a). Thus, no election nor
enhanced unanimity instruction was required.

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

                                                        ___________________________________
                                                        JOE G. RILEY, JUDGE




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