           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                 Assigned on Briefs March 5, 2014

                 STATE OF TENNESSEE v. COURTNEY KNOWLES

                      Appeal from the Criminal Court for Shelby County
                       No. 07-06139     James M. Lammey, Jr., Judge


                     No. W2013-00503-CCA-MR3-CD - Filed May 5, 2014


The defendant, Courtney Knowles, appeals his Shelby County Criminal Court jury conviction
of rape of a child, challenging the sufficiency of the convicting evidence. Discerning no
reversible error, we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and R OBERT W. W EDEMEYER, JJ., joined.

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Courtney Knowles.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin E.D. Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Jennifer Nichols and Samuel
Winnig, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                                 OPINION

               In August 2007, the Shelby County grand jury charged the defendant with two
counts of rape of a child, the victims of which were the minor daughters of the defendant’s
girlfriend. Prior to trial, the State agreed to sever the two counts and, in January 2012, the
trial court conducted a jury trial on the first count of rape of a child.

              T.M.,1 the victim’s mother, testified that, in 2004, the defendant moved into
her residence to live with her and her three children. The victim is T.M.’s oldest child and
daughter; T.M. also had a second daughter and a son. T.M. explained that, although the
defendant moved into her house and was her boyfriend, he was also her half-brother, the two

       1
           To protect the anonymity of the minor victim, we will refer to her mother by her initials.
sharing the same biological father. T.M. and the defendant had two children together, the
first born in March 2006 and the second in March 2007.

               T.M. testified that, in January 2005, the defendant told her that he had “licked”
the victim. The defendant then immediately recanted the statement, stating that “he just was
saying that for me to make him leave my house.” T.M. allowed the defendant to stay in her
residence.

              In the spring of 2005, T.M.’s younger daughter suffered a stroke and was
hospitalized for approximately one month. During that period of time, the defendant and
T.M.’s aunt were responsible for taking care of the victim and T.M.’s son.

              On Easter Sunday 2007, T.M., while running errands, found the defendant’s
video camera inside her vehicle’s glove compartment. She noticed a video tape (“the tape”)
inside the camera. The tape showed the victim seated on the living room sofa in T.M.’s
house, and although she could not see the defendant’s face on the video, she recognized the
defendant’s voice, and she saw the defendant “touch[ing the victim’s] vagina.” T.M.
immediately drove home and confronted the defendant about the tape. A girl by the name
of Lynn was also visible on the tape, and although the defendant willingly showed T.M. the
portion of the tape that included Lynn, he did not show T.M. the portion that included the
victim. T.M. removed the tape from the video camera, and, the following day, she took the
tape to a camera store and paid to have the contents of the tape transferred to a digital video
disc (“DVD”).

               T.M. later informed the defendant that she had made a DVD of the tape. Over
the course of the next few weeks, T.M. and the defendant fought over the whereabouts of the
DVD and the tape, which T.M. had hidden inside a handbag. During their final fight, the
defendant put a gun to T.M.’s head and threatened to kill her. The defendant eventually left
the residence, and T.M. then contacted the police. When law enforcement officers arrived
at her house, T.M. gave the DVD to them. She attempted to play the DVD for them, but it
was damaged. The next day, T.M. returned to the camera store, and the store was able to
provide her with another copy of the DVD because the video was still saved in the store’s
system. T.M. then provided the new copy of the DVD to the police. T.M. testified that the
defendant received the video camera from T.M.’s brother in February 2007.

              On cross-examination, T.M. admitted that, when the defendant reported
“licking” the victim in 2005, she did not contact the police. T.M. also admitted that she
waited 17 days after viewing the video tape of the defendant’s molesting the victim before
contacting the police. When asked why she did not contact the police, T.M. responded that
she “was scared” and that “people in the family didn’t know about the relationship” between

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the defendant and her.

             On redirect examination, T.M. agreed that she had waited to contact law
enforcement officers about her daughter’s abuse but that, once she did, she contacted both
the Memphis Police Department (“MPD”) and the Federal Bureau of Investigation (“FBI”).

               MPD Sergeant Judith Blue testified that she was patrolling the north precinct
of Memphis on April 25, 2007, when she was dispatched to T.M.’s residence due to a 911
hang-up call. When Sergeant Blue arrived at the scene, she encountered T.M., who stated
that she had been involved in a physical altercation with the defendant and that the defendant
had threatened her with a handgun. T.M. also informed Sergeant Blue “that there was some
sexual abuse going on that involved her minor daughter.” T.M. gave Sergeant Blue the
defendant’s video camera and the DVD. Sergeant Blue testified that T.M. then attempted
to play the DVD on the home computer, but, due to a large scratch on the DVD’s surface, the
video was not clear. Other officers transported the video camera and the DVD to the police
precinct. Sergeant Blue stated that she provided a description of the defendant and his
vehicle to Sergeant Dennis Manning, who located the defendant and took him into custody.

               MPD Officer Ryan Jackson testified that he was called to T.M.’s residence on
April 25 to process the video camera, several DVDs, and a book entitled “The Evil That Men
Do: FBI Profiler - The Journey Into the Minds of Sexual Predators.”

              MPD Sergeant Dennis Manning testified that he arrived at T.M.’s residence
on April 25 just after Sergeant Blue arrived. After speaking with Sergeant Blue and T.M.,
Sergeant Manning left the residence to attempt to locate the defendant. Approximately two
blocks from T.M.’s house, Sergeant Manning located the defendant driving the pickup truck
that T.M. had described. Sergeant Manning arrested the defendant for the aggravated assault
of T.M. When processing the defendant’s vehicle, Sergeant Manning found a nine-
millimeter handgun.

                The victim testified that she was 16 years old and in the tenth grade. The
victim stated that, in 2005, she and her younger siblings shared a bedroom in T.M.’s house
and that T.M. and the defendant shared a bedroom. The victim testified that she was
unaware that her “Uncle Courtney” was her mother’s boyfriend until T.M. “had a baby.”
With respect to her relationship with the defendant, the victim stated that he treated her like
a niece until 2005 when she was in the third grade. In April 2005, the victim’s younger sister
suffered a stroke and was admitted to the hospital. The victim accompanied T.M. and the
defendant to the hospital, and at T.M.’s suggestion, the defendant drove the victim home
from the hospital to pack a change of clothes and other necessary items. The victim then
testified as follows:

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              Q:     Okay. What happened when you went home that day?

              A:     Well, we was getting everything ready, and then [the
                     defendant] called me in the room, and he took all my
                     clothes off, and he was just touching on me; and he made
                     me touch his private area – his penis area. And he was
                     trying to show me how to suck his penis area by
                     describing with his finger.

              Q:     You said he described it with his finger? – what did he
                     do with his finger?

              A:     He was licking his finger to show me what to do with his
                     penis.

              Q:     Did you try and do what he asked you to do?

              A:     Yes, ma’am.

              Q:     You said he was touching on you.         Where was he
                     touching you?

              A:     He had touched me on my breasts, my private area –
                     well, my vagina and my butt.

              Q:     What room was this in?

              A:     My mother’s room.

The victim testified that she was scared and that she cried for her mother. Eventually, the
defendant stopped, and he drove the victim back to the hospital. The victim did not tell T.M.
what had happened.

               The victim testified that the defendant continued to sexually abuse her “like
every day like when we were in the shower or tub or when my mother was gone or asleep.”
The victim stated that the defendant would touch her vagina, breasts, and buttocks and that
he would “lick [her] vagina.” The defendant did not ask the victim to lick his penis again,
but he once attempted to insert his penis “in [her] bottom.” The victim described that
incident, stating that the defendant “had me like on my mama’s bed – it was in the middle
of her bed; and he was on the bed too; and his knees was on the bed, and he had my bottom

                                             -4-
in the air.” The victim asked the defendant to stop, and he complied.

               The victim testified that, on more than one occasion, the defendant would
molest her while she was in the shower and that many times she would awaken in the night
to the defendant’s touching her. The victim reported that the defendant used his cellular
telephone to take photographs of her breasts, vagina, and buttocks while she was naked, and
she testified that the defendant once used his video camera to film the sexual abuse. The
victim described that incident as follows:

              Well, my mama, she left that day and said she went to the store;
              and [the defendant] just walked in with the camera. I was lying
              on the couch. And he said – he took my clothes off; and he had
              my legs up; and he had my shirt (indiscernible). He was playing
              with my breasts, my vagina, and my bottom; and he turned me
              over to play with my bottom and my vagina area too.

The State played a portion of the DVD for the victim, and from the video she identified
herself, the defendant’s voice, and the defendant’s hands touching her body. The victim also
identified handwritten notes that the defendant had given her which stated, among other
things, “‘Do you want me – do you want me to love you and [your younger sister]; or do you
want me to love just you?’” and “‘Can I lick you today?’”

             The victim testified that, on one occasion between the first incident of abuse
and the making of the DVD, she was in the defendant’s vehicle when he drove her to a hotel:

              I’m thinking that he was gonna pick somebody up, but he took
              me to the hotel, took all my clothes off, and he was touching on
              me, licking my vagina; and he – had his penis out, but he
              weren’t sticking it inside my vagina. He had it like on top
              moving back and forth. And he did it so long that that sperm
              came out, and he was like, “Look what you make me do.”

               On cross-examination, the victim admitted that, when she gave a statement to
the MPD in May 2007, she did not mention that the defendant had shown her how to lick his
penis or that he had licked her vagina, and she acknowledged that she did not mention the
hotel room incident in her May 2007 statement.

               On redirect examination, the victim explained that she had not mentioned those
details in her MPD interview because she was not asked those specific questions and because
she was scared. The victim acknowledged that she was in the fifth grade and had just turned

                                             -5-
12 years old when she was interviewed in May 2007. The victim emphasized that everything
she had testified to at trial was truthful, and the victim confirmed that she described the
appearance of the defendant’s penis to law enforcement officers during her interview.

                Sally Discenza, a sexual assault nurse examiner with Rape Crisis in Memphis
and a family nurse practitioner with St. Jude Children’s Research Hospital, testified as an
expert in forensic nursing. Ms. Discenza examined the 12-year-old victim on May 4, 2007.
She first obtained a history from T.M. and the victim, and the victim reported that the
defendant had touched “her breasts, buttocks and vagina, with his hands at least two time[s]
a week over the last year; and on three occasions, he attempted to penetrate her anus with his
penis.” Ms. Discenza also testified that the victim “said that [the defendant] threatened to
kill her if she told anybody.”

                After speaking with the victim, Ms. Discenza conducted a physical examination
of the victim. Ms. Discenza found no recent injuries to the victim’s vaginal and anal area,
but she did find indications of past injuries to both areas. Explaining that the vaginal tissue
of premenstrual girls is more susceptible to injury, Ms. Discenza described injuries to the
victim that were more consistent with “some type of sexual penetration.” Ms. Discenza
testified that she had also examined the victim in 1998 when the victim was three years old
following a report that T.M.’s then-boyfriend had “touched her down there.” Ms. Discenza’s
1998 physical examination of the three-year-old victim revealed no vaginal or anal
lacerations or redness. Based on her 2007 examination of the victim, Ms. Discenza opined
that the victim had sustained a penetrating injury to her vagina, and she further opined that
the injury was not due to the 1998 reported sexual assault.

             On cross-examination, Ms. Discenza admitted that she did not know exactly
when the penetrating injury occurred, although she was able to opine that the injury had
occurred within the past “year or so.” With respect to the victim’s anal fissure, Ms. Discenza
conceded that such fissures can develop due to poor diet and constipation.

             On redirect examination, Ms. Discenza agreed that the victim had not reported
any problems with constipation, hard stool, or chronic diarrhea but that she had reported
attempted anal penetration by the defendant.

              With this evidence, the State rested its case. Following the trial court’s denial
of the defendant’s motion for judgment of acquittal and a Momon colloquy, see Momon v.
State, 18 S.W.3d 152, 161-62 (Tenn. 1999), the defendant elected not to testify.

              Based on this evidence, the jury convicted the defendant as charged of rape of
a child. Following a sentencing hearing, the trial court imposed a sentence of 25 years, to

                                              -6-
be served consecutively to the defendant’s sentence in a federal case. On April 26, 2012, the
trial court issued an order denying the defendant’s motion for new trial, and the defendant
did not file a notice of appeal.2 On February 6, 2013, the trial court entered a judgment
dismissing the defendant’s second charge of rape of a child, and on February 21, the
defendant filed a motion in this court seeking acceptance of his late-filed notice of appeal,
explaining that he mistakenly believed that the notice of appeal did not need to be filed until
after the second child rape count had been tried. On March 11, 2013, this court, in the
interest of justice and pursuant to Tennessee Rule of Appellate Procedure 4(a), waived the
timely filing requirement and granted the defendant 10 days in which to file a notice of
appeal. The defendant complied, and in this appeal, the defendant contends only that the
evidence adduced at trial was insufficient to support his conviction.

               Although the defendant has framed his issue as one of evidentiary sufficiency,
we perceive the real issue to be whether the State properly elected the offense for which it
was seeking a conviction. We begin with an overview of the pertinent legal principles. The
law is well-settled 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 accused has
committed more offenses against the victim than were charged. See State v. Johnson, 53
S.W.3d 628, 630 (Tenn. 2001); 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). Most often, the election requirement arises in the sex-crimes context when a
defendant is alleged to have performed multiple sexual acts over a lengthy period of time
against young children who are unable to provide the exact date on which any one act
occurred. See Johnson, 53 S.W.3d at 631; Brown, 992 S.W.2d at 391-92. “The election
requirement safeguards the defendant’s state constitutional right to a unanimous jury verdict
by ensuring that jurors deliberate and render a verdict based on the same evidence.”
Johnson, 53 S.W.3d at 631.

                Our supreme court has expounded upon the election requirement as follows:

                If . . . the evidence indicates various types of abuse, the
                prosecution may identify a particular type of abuse and elect that
                offense. . . . Moreover, when recalling an assault, a child may
                be able to describe unique surroundings or circumstances that
                help to identify an incident. The child may be able to identify an
                assault with reference to a meaningful event in his or her life,
                such as the beginning of school, a birthday, or a relative’s visit.


        2
         The defendant did, however, file a pro se application for extraordinary review pursuant to Rule 10
of the Tennessee Rules of Appellate Procedure, which application was denied by this court on May 30, 2012.

                                                   -7-
              Any description that will identify the prosecuted offense for the
              jury is sufficient. In fulfilling its obligation . . . to ensure that an
              election occurs, the trial court should bear in mind that the
              purpose of election is to ensure that each juror is considering the
              same occurrence.

State v. Shelton, 851 S.W.2d 134, 138 (Tenn. 1993) (internal citations and footnote omitted).

               In the instant case, the defendant was charged with a single count of rape of
the child victim occurring between January 1, 2005 and April 21, 2007. “Rape of a child is
the unlawful sexual penetration of a victim by the defendant or the defendant by a victim, if
the victim is more than three (3) years of age but less than thirteen (13) years of age.” T.C.A.
§ 39-13-522(a). “Sexual penetration” is defined as “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.” Id. § 39-13-501(7).

              At the conclusion of the trial, the State announced its election in the following
fashion:

              We’re going to elect the – although we are not going to have a
              date specific, we are going to elect the alleged act of rape of a
              child occurring in April, 2005, at [T.M.’s residence] when the
              victim and defendant returned from the hospital. I think that’s
              the one that had the most detail.

The trial court then asked the State “to elect either fellatio or cunnilingus,” to which the
prosecutor initially replied, “I don’t want to do that. I want you to make me,” and “I just
thought if I decided if I didn’t want to, you wouldn’t make me.” The trial court insisted that
an election of a specific type of penetration was necessary, stating, “I need to say rape of a
child by cunnilingus . . . [o]r rape of child by fellatio. I don’t . . . recall any digital
penetration.” The prosecutor decided she was “going to go for cunnilingus on that one
because there was more testimony about that as a continuing act of rape of a child by
cunnilingus.” The trial court then recited the jury charge on election as follows:

              In this case, the state has elected to submit, for your
              consideration, the alleged act of rape of a child by cunnilingus
              occurring in April, 2005, at [T.M.’s residence], when [the
              victim] and [the defendant] returned home from the hospital to
              obtain clothing, toiletries, and food.

                                                -8-
The prosecutor thanked the trial court, apparently acknowledging that the proposed charge
on election of offenses was accurate.

               Without question, the specific incident referred to in the election was the April
2005 instance when the defendant drove the victim home to collect clothing and other items
to return to the hospital following the victim’s sister’s stroke. The victim testified that, on
that particular day, the defendant called her into T.M.’s bedroom, removed all of her
clothing, “touched [her] on [her] breasts, . . . [her] vagina and [her] butt,” and demonstrated
how to perform fellatio on him, which the victim attempted. The description of the assault
was certainly sufficient to identify the specific incident for the jury, and it was
unquestionably sufficient to establish unlawful sexual penetration and thus rape of a child.
The issue, however, is that the victim did not testify to penetration by cunnilingus, as elected
by the State, but rather penetration by fellatio.

               Despite this obvious mistake on the part of the prosecution, we perceive no
unanimity problem under these particular circumstances because the instance of fellatio was
the only instance of penetration that occurred on that specific day under those very specific
circumstances. As such, the jury’s decision to convict the defendant of rape of a child could
only have been reached if the jury unanimously decided that unlawful sexual penetration had
occurred, and because fellatio was the only type of penetration that the victim testified
occurred on that particular occasion, the jury must have used that act as the basis for the
conviction, despite the erroneous reference to cunnilingus in the jury charge. Compare
Shelton, 851 S.W.2d at 138 (holding that the State’s failure to elect was harmless beyond a
reasonable doubt as to one of three victims because the jury’s verdict of aggravated rape “on
this count only” indicated that “the jurors must have considered the evidence of” a specific
incident of penile penetration on the victim’s birthday in convicting the defendant) with State
v. Clabo, 905 S.W.2d 197, 205 (Tenn. Crim. App. 1995), perm. app. denied (Tenn. June 5,
1995) (holding that defendant was denied a unanimous jury verdict and ordering a new trial
when the State presented proof of both oral and anal penetration and failed to elect which
type of penetration it was relying on in seeking conviction of aggravated rape).

               Bearing in mind that the “purpose of election is to ensure that each juror is
considering the same occurrence,” Shelton, 851 S.W.2d at 138 (emphasis added), and equally
mindful that “a harmless error analysis is appropriate only where the proof overwhelmingly
established the offense for which conviction is sought and proof of the other crimes is
marginal or tangential,” State v. James Clayton Young, Jr., No. 01C01-9605-CC-00208, slip
op. at 12 (Tenn. Crim. App., Nashville, May 22, 1998) (citation omitted), we conclude that
the State’s election error was harmless beyond a reasonable doubt. Based on the facts of this
case, the victim’s articulate and particularized testimony of a single act of penetration by
fellatio under very specific circumstances is enough to satisfy the requirement of jury

                                              -9-
unanimity despite the State’s inaccurate election.

               That said, we address the defendant’s claim that the evidence was generally
insufficient to sustain his conviction. We review this claim mindful that our 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. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard
applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).

                When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
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. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State
the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. Id.

               As we stated previously, rape of a child “is the unlawful sexual penetration of
a victim by the defendant or the defendant by a victim” where the victim is over the age of
3 and under the age of 13, T.C.A. § 39-13-522(a), and sexual penetration includes fellatio,
T.C.A. § 39-13-501(7). In the instant case, the Shelby County grand jury charged the
defendant with “unlawfully and intentionally sexually pentrat[ing the victim], a person more
than three (3) years of age but less than thirteen (13) years of age, in violation of T.C.A. [§]
39-13-522.” The indictment did not mention the nature of the penetration. At trial, the
victim testified that, when she was in the third grade, the defendant forced her to perform
fellatio on him after first demonstrating “how to suck his penis area by describing with his
finger.” When asked if she had attempted to “do what he asked you to do,” the victim
responded in the affirmative. Regardless of the terms of the election, the evidence supported
the commission of the offense as alleged in the indictment. Our analysis of the sufficiency
of the evidence focuses upon whether the elements as alleged in the indictment were
established, and, clearly, the State established those elements by showing the sexual
penetration of the third-grade victim. Affording the State the strongest legitimate view of
the evidence and deferring to the credibility determinations made by the jury, we conclude
that the evidence supports the defendant’s conviction of rape of a child.

              Accordingly, we affirm the judgment of the trial court.



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       _________________________________
       JAMES CURWOOD WITT, JR., JUDGE




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