                  IN THE SUPREME COURT OF TENNESSEE
                              AT JACKSON
                                 March 4, 2015 Session

              STATE OF TENNESSEE V. COURTNEY KNOWLES

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


                  No. W2013-00503-SC-R11-CD – Filed July 31, 2015


GARY R. WADE, J., dissenting.

         “Hard cases, it has frequently been observed, are apt to introduce bad law.”
Winterbottom v. Wright, 152 Eng. Rep. 403, 404 (1842). The same is true of “cases in
which . . . moral indignation . . . is aroused” by egregious facts. Glanville Williams, The
Sanctity of Life and the Criminal Law 105 (1957). The defendant here, convicted of the
rape of a child and already serving a forty-year sentence for related federal offenses,
deserves no sympathy. Because, however, constitutional principles sometimes get in the
way of what might otherwise qualify as a just punishment, I must dissent from my
colleagues. The fundamental principle at issue here is the right to a unanimous jury
verdict, see Tenn. Const. art. I, § 6, which requires the State to elect the specific evidence
it is relying upon for a conviction when the jury hears proof of more than one instance of
sexual misconduct. State v. Johnson, 53 S.W.3d 628, 630 (Tenn. 2001). Regrettably, the
State misidentified the factual basis for the charged offense in this instance. Because this
error, although clearly inadvertent, served to undermine the fundamental right to a
unanimous verdict, I believe that a new trial should be ordered.

                             I. Facts and Procedural History
       In August of 2007, Courtney Knowles (the “Defendant”) was indicted for the rape
of the minor daughter of his half-sister, T.M., who was also his live-in girlfriend. The
indictment provided that “between January 1, 2005 and April 21, 2007, . . . [the
Defendant] did unlawfully and intentionally sexually penetrate [the victim], a person
more than three (3) years of age but less than thirteen (13) years of age.”

       The State‟s proof established that in April of 2005, when the victim was in third
grade, her sister was hospitalized. The Defendant drove the victim home from the
hospital to retrieve clothes, food, and toiletries. While at their residence, the Defendant
“took all [the victim‟s] clothes off”; touched her “private area,” including “[her] vagina
and [her] butt”; and forced her to perform fellatio on him. In addition to the April 2005
incident, the State presented evidence of several other instances of sexual misconduct:
(1) in January of 2005, the Defendant told T.M. that he had “licked” the victim; (2) on
Easter Sunday of 2007, T.M. discovered a video tape with footage of the Defendant
touching the victim‟s vagina, and the victim testified that the Defendant had “play[ed]
with [her] breasts, [her] vagina, and [her] bottom” on that occasion; and (3) on an
unspecified date between the January 2005 incident and the discovery of the video tape in
2007, the Defendant took the victim to a hotel room, where the Defendant “lick[ed] her
vagina” and rubbed his penis back and forth “on top” of her vagina. The victim also
testified that the Defendant had sexually abused her “like every day” by touching her
private areas and “lick[ing] [her] vagina.”

        At the close of its case-in-chief, the State, which had chosen to proceed on a single
charge, elected to seek a conviction based on “the alleged act of rape of a child occurring
in April[] 2005 . . . when the victim and [the Defendant] returned from the hospital.” The
trial court directed the State to elect a specific type of penetration, and the State chose
cunnilingus. Based upon the State‟s election, the trial court provided the following
instruction to the jury:

               In this case, the [S]tate 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 D]efendant returned
        home from the hospital to obtain clothing, toiletries, and food.

               Members of the jury, you are to consider only this alleged act in
        deciding whether or not the [D]efendant has been proven guilty beyond a
        reasonable doubt of the offense[] charged . . . in the indictment.

(Emphasis added.) The jury found the Defendant guilty, and the trial court imposed a
sentence of twenty-five years, to be served consecutively to a prior federal sentence.1 The
Court of Criminal Appeals properly concluded that the State‟s election was in error
because there was no proof of cunnilingus during the April 2005 incident. State v.
Knowles, No. W2013-00503-CCA-MR3-CD, 2014 WL 1831018, at *7 (Tenn. Crim.
App. May 5, 2014). Nevertheless, the court affirmed the conviction, holding that the
error was harmless beyond a reasonable doubt because “the victim‟s articulate and
particularized testimony of a single act of penetration by fellatio under very specific
        1
         The record indicates that the Defendant received a total sentence of forty years for his federal
convictions, which included sexual exploitation of a minor and possession of materials involving the
sexual exploitation of a minor. See United States v. Knowles, 623 F.3d 381 (6th Cir. 2010) (affirming
the Defendant‟s federal convictions).
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circumstances . . . satisf[ied] the requirement of jury unanimity despite the State‟s
inaccurate election.” Id. (emphasis added).

                                       II. Analysis
        In order to ensure a defendant‟s constitutional right to a unanimous jury verdict on
a particular charge, whenever the evidence includes multiple instances of misconduct that
could support the charge, the State must elect at the close of its case-in-chief the offense
for which it is seeking a conviction. Johnson, 53 S.W.3d at 630; State v. Kendrick, 38
S.W.3d 566, 568 (Tenn. 2001). This Court has previously explained the purposes of the
rule:

       First, it ensures that a defendant is able to prepare for and make a defense
       for a specific charge. Second, election protects a defendant against double
       jeopardy by prohibiting retrial on the same specific charge. Third, it enables
       the trial court and the appellate courts to review the legal sufficiency of the
       evidence. The most important reason for the election requirement, however,
       is that it ensures that the jurors deliberate over and render a verdict on the
       same offense.

State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000). The rule mandating an election is not
so inflexible as to require the State to identify the particular date of a chosen offense.
State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993). “Any description that will identify
the prosecuted offense for the jury is sufficient.” Id. at 138. Thus, the identification of “a
particular type of abuse may be sufficient,” as may be “unique surroundings or
circumstances that help to identify an incident.” Id.

        In this instance, however, the prosecutor became confused about the time frame
and the criminal acts, electing to prosecute an act of sexual misconduct that did not occur
during the April 2005 incident. Because the Defendant, through his counsel, failed to
challenge the clearly erroneous election, appellate review is governed by the plain error
doctrine. Of course, plain error relief is warranted only if the following criteria are
satisfied:

       (1) the record clearly establishes what occurred in the trial court; (2) a clear
       and unequivocal rule of law was breached; (3) a substantial right of the
       accused was adversely affected; (4) the accused did not waive the issue for
       tactical reasons; and (5) consideration of the error is necessary to do
       substantial justice.

State v. Dotson, 450 S.W.3d 1, 49 (Tenn. 2014) (quoting State v. Gomez, 239 S.W.3d
733, 737 (Tenn. 2007)). The majority has denied plain error relief based upon the first
                                             -3-
and fifth factors. Because I believe that all five factors have been satisfied, I would order
a new trial.

                               A. Adequacy of the Record
       The majority indicates that the omission of closing arguments from the record
prepared for this appeal precludes plain error relief. This determination, in my view, rests
on the faulty premise that an improper election can be cured by closing argument.

       Although this Court has never before held that an election error may be cured by
the State‟s closing argument, a series of unpublished decisions by our Court of Criminal
Appeals suggests that when there is no election, the State‟s closing argument may serve
as a substitute if it effectively clarifies which evidence the State is relying upon for a
particular charge. See, e.g., State v. Busby, No. M2004-00925-CCA-R3-CD, 2005 WL
711904, at *6 (Tenn. Crim. App. Mar. 29, 2005); State v. Kimbrell, No. M2000-02925-
CCA-R3-CD, 2003 WL 1877094, at *23 (Tenn. Crim. App. Apr. 15, 2003); State v.
McCann, No. M2000-2990-CCA-R3-CD, 2001 WL 1246383, at *5 (Tenn. Crim. App.
Oct. 17, 2001); State v. Dearry, No. 03C01-9612-CC-00462, 1998 WL 47946, at *13
(Tenn. Crim. App. Feb. 6, 1998). I concede, therefore, that the majority opinion has some
precedential support. In my view, however, “closing argument by the [S]tate cannot serve
as a substitute for election.” Dearry, 1998 WL 47946, at *15 (Wade, J., concurring). As
indicated, one of the purposes of the election doctrine is to “ensure[] that a defendant is
able to prepare for and make a defense for a specific charge.” Adams, 24 S.W.3d at 294.
This purpose is not achieved if the State fails to properly elect at the close of its case-in-
chief and then attempts to rectify the error during closing argument, when the defendant
has no further opportunity to formulate a defense or present contrary evidence. See
Vinson v. State, 203 S.W. 338, 339 (Tenn. 1918) (“The defendant is entitled to require
the election before he introduces any proof so that he can meet by his proof the evidence
upon which the [S]tate relies.” (emphasis added)); see also State v. Kassebeer, 193 P.3d
409, 425 (Haw. 2008) (holding that an election error could not be cured by closing
argument “because the prosecution‟s election of the specific act must take place at or
before the close of its case-in-chief, thereby rendering insufficient its attempt to do so
during closing arguments” (citation omitted)).

       Moreover, as the majority acknowledges, each of the Court of Criminal Appeals
cases cited involved the State‟s failure to make an election. This case is different
because the State made an election that did not match the proof, and the trial court gave a
jury instruction that reflected the State‟s inaccurate election. Even if the State clarified its
election by focusing on fellatio during its closing argument, to hold that the jury
unanimously relied upon fellatio as the basis for the conviction would require us to
presume that the jury disregarded the trial court‟s instruction “to consider only [the]
alleged act [of cunnilingus].” This rationale is contrary to the well-established
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presumption that the jury follows all instructions given by the trial court. See, e.g., State
v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004); see also Kassebeer, 193 P.3d at 425-26
(“[J]ust as arguments of counsel cannot substitute for evidence, so too may they not cure
defects in jury instructions. . . . Arguments by counsel are likely to be viewed as
statements of advocacy, whereas a jury instruction is a definitive and binding statement of
law.” (citation omitted)).

       Because closing argument, in my assessment, cannot cure an inaccurate election or
a deficient jury instruction, the Defendant‟s failure to include a verbatim transcript should
not preclude a finding of plain error.

                                 B. Substantial Justice
       The concept of a unanimous jury verdict is so essential to our criminal justice
system that consideration of an election error is necessary where, as here, an inaccurate
election results in a significant risk of a non-unanimous verdict. See Kendrick, 38
S.W.3d at 570.

       One reason that there was a significant risk of a non-unanimous verdict is that the
April 2005 incident elected by the State involved proof of two distinct sex offenses, either
of which could have supported the single charge in the indictment. The victim testified
that when she accompanied the Defendant home from the hospital in April of 2005, he
forced her to perform fellatio, thereby committing the rape of a child, see Tenn. Code
Ann. § 13-15-522(a). In addition, the Defendant “took all [the victim‟s] clothes off” and
“touched . . . [her] private area,” including “[her] vagina.” Touching the victim in this
manner also arguably qualified as the rape of a child, id.,2 and at the very least amounted
to an aggravated sexual battery, Tenn. Code Ann. § 13-13-504(a). Because the victim‟s

        2
            This Court has held that penetration, which is an element of rape of a child, does not require
“that the vagina be entered or that the hymen be ruptured; the entering of the vulva or labia is sufficient.”
State v. Bowles, 52 S.W.3d 69, 74 (Tenn. 2001) (quoting Hart v. State, 21 S.W.3d 901, 905 (Tenn.
2000)). Moreover, both this Court and the Court of Criminal Appeals have upheld rape convictions
based upon testimony analogous to the victim‟s testimony in this instance that the Defendant, after taking
all her clothes off, touched her “private area,” including her vagina. See id. (finding sufficient evidence
of penetration based on the victim‟s testimony that the defendant had “pressed his penis against her vulva
with his hand”); State v. Troxell, No. E2012-00233-CCA-R3-CD, 2012 WL 3642821, at *3 (Tenn. Crim.
App. Aug. 27, 2012) (finding sufficient evidence of penetration based on the victim‟s testimony “that the
defendant placed his fingers on her vagina and rubbed her vaginal area”); State v. Brown, No. M2009-
00505-CCA-R3-CD, 2010 WL 4396490, at *10 (Tenn. Crim. App. Nov. 5, 2010) (finding sufficient
evidence of penetration based on the victim‟s testimony that the defendant had “put [a] vibrator on her
. . . clitoris”); State v. Crane, No. W2000-01892-CCA-R3-CD, 2001 WL 912798, at *2 (Tenn. Crim.
App. Aug. 9, 2001) (finding sufficient evidence of penetration where the defendant “admitted [to]
„playing‟ with [the victim‟s] vagina with his penis, but denied placing his penis inside the victim‟s
vagina”).
                                                    -5-
testimony about the April 2005 incident includes two distinct acts of sexual misconduct,
either of which could support the single charged offense, there is no way to be sure that
the jurors unanimously convicted based on the same act.

        The majority attempts to refute this point by citing several cases in which this
Court has observed that jurors do not have to agree upon the facts supporting a particular
element so long as they consider only a single offense. See Johnson, 53 S.W.3d at 633;
Adams, 24 S.W.3d at 297; State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). None
of these cases are on point, however, because each involved an incident in which only one
offense was committed. Johnson, 53 S.W.3d at 634-35 (finding that no election was
necessary because “only one [sexual battery] occurred, even if more than one touching
. . . occurred”); Adams, 24 S.W.3d at 297 (“Because we find that the offense of child
abuse through neglect is a single, continuing offense, we hold that the State was not
required to make an election of offenses.”); Lemacks, 996 S.W.2d at 171(“In such cases,
as here, where the State seeks to prove one crime arising from one event, we may
presume that the jury‟s general verdict was unanimous.”). What makes this case different
is that the April 2005 incident involved two distinct sex acts that qualified as separate
offenses. See State v. Hogg, 448 S.W.3d 877, 886 (Tenn. 2014) (holding that “separate
incidents of sexual penetration” give rise to separate offenses). Indeed, in Johnson, one
of the cases relied upon by the majority, this Court specifically distinguished between
multiple non-penetrative acts of sexual touching, which “may comprise one instance of
sexual contact,” and “multiple acts of penetration,” which “constitute[] discrete offenses.”
53 S.W.3d at 634.

       For over a century, Tennessee law has been clear that when an incident involves
proof of multiple acts that constitute separate offenses, as is the case here, the State must
elect which act it seeks to prosecute. See Kendrick, 38 S.W.3d at 568 (granting plain
error relief because there were two “separate and distinct” sex offenses during a single
incident and the State failed to elect between the two); State v. Walton, 958 S.W.2d 724,
727-28 (Tenn. 1997) (granting plain error relief because the State “did not elect which of
the numerous types of sexual acts it relied upon to establish the convictions,” making it
so that “each juror was left to choose independently the act(s) of abuse upon which to
base a verdict”); Jamison v. State, 94 S.W. 675, 676 (Tenn. 1906) (holding that the State
failed to properly elect between multiple sex acts because “each unlawful act of carnal
knowledge is a separate, substantive offense”), overruled on other grounds by State v.
Rickman, 876 S.W.2d 824, 828 n.8 (Tenn. 1994); State v. Clabo, 905 S.W.2d 197, 205
(Tenn. Crim. App. 1995) (granting plain error relief because the proof established “two
separate acts” of rape during the same incident and the State failed to elect between the
two, resulting in a “grave constitutional error . . . in that the defendant may have been
denied a unanimous jury verdict”). In this instance, the State created a significant risk of
a non-unanimous jury verdict when it failed to elect between the two distinct offenses that
                                            -6-
occurred in the April 2005 incident, electing instead to prosecute an act that did not occur
during that incident. See State v. Brown, 992 S.W.2d 389, 392 (Tenn. 1999) (granting a
new trial where “the deficiency in the election at trial was further compounded by the fact
that the time-frame chosen by the prosecutor was simply inaccurate”).

       Moreover, even if there had been only one act of sexual misconduct during the
April 2005 incident, the risk of a non-unanimous jury verdict would still be so significant
as to warrant plain error relief. As noted, the State‟s election consisted of a date (the day
of the hospital trip in April 2005) and a sex act (cunnilingus) that did not match. While
the majority concludes that the jury must have unanimously convicted based upon some
other sex act that did occur on the date elected, it is equally plausible that some members
of the jury convicted based on the elected act of cunnilingus that occurred in a different
time frame. Two additional circumstances make a non-unanimous verdict even more
probable: (1) the State presented proof that the Defendant subjected the victim to
cunnilingus on several other occasions; and (2) the trial court, after confirming that the
State had elected the “alleged act” of “[c]unnilingus,” instructed the jury “to consider
only this alleged act in deciding whether or not the [D]efendant has been proven guilty.”
(Emphasis added.) Given that both the State‟s proof and the trial court‟s instructions
focused on the act of cunnilingus, I cannot agree with the majority‟s determination that
the jury must have unanimously agreed to convict based upon a different sex act.

                                C. Other Plain Error Criteria
        I will briefly address the three remaining plain error factors, all of which have been
satisfied. As to the second factor, because it is undisputed that the election was factually
erroneous, a clear and unequivocal rule of law was breached. As to the third factor, the
election error affected the Defendant‟s right to a unanimous jury verdict, which
undoubtedly qualifies as a substantial right. See Burlison v. State, 501 S.W.2d 801, 804
(Tenn. 1973) (characterizing the requirement of jury unanimity as “fundamental” and
“immediately touching the constitutional rights of an accused”). As to the fourth factor,
there was no strategic basis for the Defendant‟s failure to present this issue in the trial
court. Thus, in my assessment, all of the prerequisites for plain error relief have been
established.

                                     III. Conclusion
        In summary, the election error in this case undermined the fundamental
constitutional requirement of a unanimous jury verdict. Because of the lack of certainty
as to the nature and timing of the offense, I cannot contemplate any remedy other than a
new trial.

                                                         __________________________
                                                         GARY R. WADE, JUSTICE
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