                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE
                                   February 8, 2001 Session

          STATE OF TENNESSEE v. ROBERT DERRICK JOHNSON

                  Appeal by Permission from the Court of Criminal Appeals
                            Criminal Court for Bedford County
                         No. 14272    William Charles Lee, Judge



                    No. M1998-00546-SC-R11-CD - Filed August 22, 2001



E. RILEY ANDERSON, C.J., with whom JANICE M. HOLDER, J., joins, concurring in part and dissenting
in part.

         I fully concur in the majority’s affirmance of the defendant’s convictions and sentences for
aggravated robbery and false imprisonment. The majority, however, has erroneously concluded that
the prosecution was not required to make an election of offenses and that the trial court did not err
in failing to give an enhanced instruction to ensure that the jury’ s verdict was unanimous as to the
offense of sexual battery. The majority’s holding is based on its view that there was evidence of only
one offense of sexual battery, notwithstanding the fact that the defendant committed two separate
and distinct acts of sexual contact against the victim. In reaching this conclusion, the majority has
misapplied existing precedent and statutory law and has created a muddled analysis that, as applied
to the offense of sexual battery, permits a defendant to commit numerous acts of sexual contact
against a victim with no criminal consequence. I therefore dissent.

         In my view, there was evidence from which the jury could reasonably find two offenses of
sexual battery and the prosecution was therefore required to elect which offense it relied upon to
establish the conviction. Moreover, the prosecution’s failure to follow this well-established
requirement denied the defendant his constitutional right to a unanimous jury verdict in violation of
article I, § 16 of the Tennessee Constitution and requires a new trial on this offense.


                                  ELECTION OF OFFENSES

        As the majority recognizes, this 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.” State
v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999). This requirement, which is grounded in part upon the
Tennessee Constitution, has been reaffirmed and enforced by this Court on numerous occasions. See
State v. Kendrick, 38 S.W.3d 566, 568 (Tenn. 2001); 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).

        The paramount importance of the election requirement is that it protects a defendant’s right
to a unanimous jury verdict under the Tennessee Constitution by ensuring that jurors deliberate over
and render a verdict based on the same offense. State v. Brown, 992 S.W.2d at 391. As this Court
has observed:

               [T]here should be no question that the unanimity of twelve jurors is
               required in criminal cases under our state constitution. 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.


State v. Shelton, 851 S.W.2d at 137 (citations omitted). The election requirement serves other
interests as well: it enables a defendant to prepare for a specific charge; it protects a defendant
against double jeopardy; it enables the trial court to review the weight of the evidence in its capacity
as thirteenth juror; and it enables the appellate court to review the legal sufficiency of the evidence.
See State v. Brown, 992 S.W.2d at 391.

         The majority asserts that the election doctrine has often been applied in cases involving
multiple offenses occurring over a period of time. See State v. Walton, 958 S.W.2d at 727. While
this assertion may be correct, it is equally significant to note that we have never limited the election
doctrine to cases involving multiple charges. See, e.g., Kendrick, 38 S.W.3d at 568; Brown, 992
S.W.2d at 389. Nor have we limited the election doctrine to cases in which the indictment alleges
that the charged offense or offenses occurred over a certain period of time. See Kendrick, 38 S.W.3d
at 568. In sum, the concern for jury unanimity and the requirement for an election may arise in any
case in which the defendant has been charged with an offense and the evidence indicates that more
than one offense was committed.


                                     MULTIPLE OFFENSES

       The majority properly recognizes that the election issue in this case turns on the question of
whether there was evidence of multiple offenses of sexual battery. The apparent rationale for the
majority’s conclusion that there was only one offense is twofold: first, that the relevant statutory
provisions allow evidence of multiple acts of “sexual contact” to be used in proving a single offense
of sexual battery; and second, that an analysis of the relevant factors in State v. Phillips, 924 S.W.2d
662 (Tenn. 1996) establishes that only one offense of sexual battery was committed. The majority
is wrong on both counts.


                                                  -2-
                                         Statutory Analysis

       As the majority discusses, the offense of “sexual battery” is statutorily defined as an
“unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied
by any of the following circumstances”:

                (1) Force or coercion is used to accomplish the act;

                (2) The sexual contact is accomplished without the consent of the
                victim and the defendant knows or has reason to know at the time of
                the contact that the victim did not consent;

                (3) The defendant knows or has reason to know that the victim is mentally
                defective, mentally incapacitated or physically helpless; or

                (4) The sexual contact is accomplished by fraud.


Tenn. Code Ann. § 39-13-505(a) (1997). In addition, “sexual contact” is defined as follows:

                “[T]he intentional touching of the victim’s, the defendant’s, or any
                other person’s intimate parts, or the intentional touching of the
                clothing covering the immediate area of the victim’s, the defendant’s,
                or any other person’s intimate parts, if that intentional touching can
                be reasonably construed as being for the purpose of sexual arousal or
                gratification.”


Id. § 39-13-501(6) (1997). Finally, “intimate parts” include “the primary genital area, groin, inner
thigh, buttock or breast of a human being.” Id. § 39-13-501(2) (1997).

        The majority’s statutory analysis of the offense rests entirely upon the fact that the definition
of “sexual contact” includes the plural term “parts.” Id. § 39-13-501(6) (1997). Relying solely upon
this plural term, the majority leaps to the startling conclusion that the prosecution may introduce
evidence of multiple acts of sexual contact in proving a single charge of sexual battery regardless
of the nature of the contact or the areas of the victim invaded by a defendant. Although the majority
claims that this is the “plain” meaning of the statute, such an interpretation means that any act of
sexual contact after the initial act of sexual contact would be of no legal consequence. I cannot
believe that the legislature intended to allow any defendant to commit multiple acts of sexual contact
against a victim and be guilty of but a single offense.




                                                  -3-
       Moreover, the majority overlooks or finds no significance in the fact that the legislature
delineated specific areas of the victim in the definition of “intimate parts.” See id. § 39-13-501(2)
(1997). As one court has said:

                In defining ‘intimate parts,’ the . . . statute lists five separate protected
                areas: the genital area, groin, buttocks, anus and breast. We hold that
                the legislative intent was to protect the victim from intrusions to each
                enumerated part. Thus, under the facts of this case, which showed
                distinctly separate touchings of two of the protected areas, defendant
                was properly convicted and separately sentenced for [two counts].
                . . . Separate punishments are sustainable where evidence shows
                distinctly separate touchings to the different parts.


State v. Williams, 730 P.2d 1196, 1199 (N.M. Ct. App. 1996) (emphasis added). In my view, the
statutory definition of “intimate parts” reflects the legislature’s intent to provide more protection for
victims and not less as the majority believes. Thus, I reject the majority’s statutory interpretation
that serves as the underlying premise for its holding.


                                            State v. Phillips

        The majority bolsters its conclusion that the evidence revealed only a single offense of sexual
battery by applying the factors set forth in Phillips, which include (1) the nature of the acts; (2) the
area of the victim’s body invaded by the sexually assaultive behavior; (3) the time elapsed between
the discrete conduct; (4) the accused’s intent; and (5) the cumulative punishment imposed. 924
S.W.2d at 665. Although I fully agree that the Phillips factors are useful in determining whether
there were multiple offenses for the purpose of election, see State v. Kendrick, 38 S.W.3d at 569,
I believe that the majority has misapplied the Phillips analysis and has again reached the wrong
conclusion.

         There is no dispute that the defendant first touched the victim’s breast and thereafter touched
the victim over the clothes between her legs. Although the record is silent as to the exact time
between the two touchings, I believe that a jury could reasonably find that the second touch was
purposeful, intentional, and distinct from the first touch. Two separate areas of the victim’s body
were clearly invaded by the defendant’s conduct and neither touch was accidental or incidental to
the other touch. It may be inferred from the purposeful and intentional nature of the second touch
that it, like the first touch, resulted from a desire for sexual gratification. Finally, although the
cumulative punishment factor does not apply in this case since the defendant was convicted of only
one count of sexual battery, several courts have upheld multiple convictions in cases similar to this
one. State v. Williams, 730 P.2d at 1199; State v. Suarez, 736 P.2d 1040, 1042 (Utah Ct. App.
1987); State v. Rummer, 432 S.E.2d 39, 47 (W. Va. 1993). Accordingly, a complete analysis of the
Phillips factors supports a finding that the defendant committed two offenses of sexual battery.


                                                    -4-
         The majority, however, has applied Phillips to conclude that the defendant’s conduct
consisted of a single offense. Moreover, the majority postulates that there was no evidence of
multiple offenses, but rather, evidence of multiple touches that would satisfy an element of the
offense, i.e., sexual contact.1 The majority’s view hinges almost entirely on its determination that
“little or no time elapsed between the touchings” and that there was no evidence “to indicate a newly
formed intent to again seek sexual gratification.” The majority fails to consider that the sexual
contact was two separate, statutorily protected areas of the victim’s body; that each act of sexual
contact was separate and distinct from the other; that neither act of sexual contact was accidental or
incidental to the other; and that a jury could reasonably find that either touch was accompanied by
a desire to gain sexual gratification.

         Moreover, the majority’s review of the cold appellate record provides little or no guidance
as to how it arrived at its conclusion or how the analysis is to be applied in future cases. How short
is a period of “little or no” time? How many acts of sexual contact may a defendant commit against
a victim in a given period of time and be guilty of but one offense? What evidence does the majority
rely upon to conclude that acts of sexual contact occurred “quickly and virtually simultaneously?”
What factors, other than the amount of time, has the Court looked to with regard to the element of
sexual gratification? These questions are unanswered. The majority instead focuses entirely upon
the short amount of time that elapsed during the offense and gives no apparent significance to the
remaining factors under Phillips. Contrary to the majority’s assertion, I am not misstating its
holding; I simply find it to be erroneous.

        Finally, although the majority surprisingly asserts that dual convictions under the facts of this
case would be barred by double jeopardy principles, I once again note that other jurisdictions have
held that multiple punishments are appropriate where multiple convictions are based on facts similar
to the present case. See State v. Williams, 730 P.2d at 1199; State v. Suarez, 736 P.2d at 1042; State
v. Rummer, 432 S.E.2d at 47. The majority’s view, which focuses solely upon the passage of time,
in effect revives the “single transaction” or “same criminal episode” analysis for applying double
jeopardy principles. This analysis was rejected in Phillips.

        Although it contends it is following “well-established” law, the majority cites no published
Tennessee cases that are on point. Instead, it relies primarily upon an intermediate court opinion,
State v. Pelayo, 881 S.W.2d 7 (Tenn. Crim. App. 1994), and several unpublished Court of Criminal
Appeals opinions that were decided before our decision in Phillips. The reliance on Pelayo is further
misplaced in that it involved the offense of aggravated assault, the statutory provisions for which do
not delineate or mention specific areas of the victim’s body. See State v. Williams, 730 P.2d at
1199. Despite the absence of controlling authority in Tennessee, the majority ignores similar cases


         1
                   As I have previously stated, the m ajority’s purp orted statuto ry basis for this alleg ed distinction is
misplaced. Moreover, the majority’s conclusion is tantamount to finding that the offense of sexual battery is a continuing
offense. Indeed, the majority goes on to rely upon State v. Adams, 24 S.W.3d 289 (Tenn. 2000), in which this Court
held that election was not required for a continuing offense. If the majority is of the opinion that sexual battery is a
continuing offense as a matter of law, it has cited no authority in support of such a conclusion.

                                                            -5-
decided by courts in our sister jurisdictions and instead criticizes this dissent for its reference to those
cases.

                                                    CONCLUSION

         Accordingly, since in my view there was evidence of two offenses of sexual battery, it
follows that under Tennessee law the prosecution was required to elect which offense it relied upon
for the sexual battery conviction.2 As we noted in State v. Shelton, a failure to elect implicates the
constitutional right to a unanimous verdict and is, therefore, subject to constitutional harmless error
analysis. 851 S.W.2d at 138. I would initially emphasize that the prosecution’s duty to elect is well-
established and that this Court has repeatedly stated that the purpose of election is to preserve the
constitutional right to a unanimous jury verdict. In this case, the jury was presented with two
offenses of sexual battery based on two acts of sexual contact that occurred in two separate and
distinct statutorily protected areas of Smith’s body. Because of the State’s failure to elect the offense
it relied upon for the conviction, it cannot be determined whether the jury was unanimous in its
verdict. The State has, therefore, failed to show that the error was harmless beyond a reasonable
doubt.

        In my view, the majority has misapplied existing precedent and statutory law and has created
a muddled analysis that, as applied to the offense of sexual battery, permits a defendant to commit
numerous acts of sexual contact against a victim with no criminal consequence. I would hold that
there was evidence from which the jury could reasonably find two offenses of sexual battery and that
the prosecution was therefore required to elect which offense it relied upon to establish the
conviction. Moreover, the prosecution’s failure to follow this well-established requirement denied
the defendant his constitutional right to a unanimous jury verdict in violation of article I, § 16 of the
Tennessee Constitution and requires a new trial on this offense. Finally, I am authorized to state that
Justice Holder joins in this concurring and dissenting opinion.



                                                          ________________________________________
                                                          E. RILEY ANDERSON, CHIEF JUSTICE




         2
                   I would lastly note that the election case s cited as autho rity by the majo rity apply only if on e accepts
the majority’s faulty premise that there was but a single offense in this case, which I obviously do not. In both State v.
Cribbs, 967 S.W.2d 773 (Tenn. 1998) and State v. Lemacks, 996 S.W .2d 166 (Tenn. 1 999), the issu e concern ed multiple
theories for which election is not required and not multiple offenses for which election is required. Finally, as I noted
earlier, the Court in State v. Adams, 24 S.W.3d 289 (Tenn. 2000), simply held that election was not required for a
continuing o ffense.

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