             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE                  FILED
                          NOVEMBER 1995 SESSION
                                                          December 16, 1997

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
STATE OF TENNESSEE,           )
                              )
             Appellee,        )    No. 03C01-9505-CR-00139
                              )
                              )    Knox County
v.                            )
                              )    Honorable Ray Lee Jenkins, Judge
                              )
HOWARD BROWN, ALIAS,          )    (Aggravated Rape)
DUNKER,                       )
                              )
             Appellant.       )


For the Appellant:                 For the Appellee:

Susan E. Shipley                   Charles W. Burson
800 Gay Street                     Attorney General of Tennessee
1610 Plaza Tower                          and
Knoxville, TN 37929                Hunt S. Brown
                                   Assistant Attorney General of Tennessee
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   Honorable Randall E. Nichols
                                   District Attorney General
                                           and
                                   Charme P. Johnson
                                   Greg Harrison
                                   Assistant District Attorneys General
                                   City County Building
                                   Knoxville, TN 37902




OPINION FILED:__________________



AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



             The defendant, Howard Brown, alias, Dunker, appeals from his conviction

in the Knox County Criminal Court for aggravated rape, a Class A felony. He was

sentenced as a Range I, standard offender to twenty years to be served in the custody

of the Department of Correction. In this appeal as of right, the defendant contends:

             (1) that this case should be remanded for the trial court to
             determine if the indictment charges an offense,

             (2) that the trial court erred in excluding admissible evidence
             of the victim’s sexual relationship with an adolescent male that
             was offered to rebut medical testimony under Tenn. R. Evid.
             412,

             (3) that the trial court erred in supplementing its instructions to
             the jury relative to the election of offenses after the jury had
             begun deliberations, and

             (4) that the trial court erred in allowing the jury to resume
             deliberations after declaring a mistrial,

             (5) that the trial court erred in refusing the defendant’s request
             for individual polling of jurors.

We find no reversible error and affirm the conviction.



             The facts in this case involve the defendant having sexual intercourse with

his step-daughter, who was less than thirteen years old. The victim testified that she

was eleven years old and in the sixth grade when the defendant began touching and

kissing her. She stated that the first conduct occurred on a day that the defendant kept

her home from school. She said that the defendant took her to her mother’s room

where he had her perform oral sex and he performed oral sex on her. Later that same

day, she testified that the defendant again forced her to perform oral sex on him. On

another day, she said that the defendant came to her bedroom, took off her clothes and

placed his penis inside her. She said that he stopped when she complained that he

was hurting her stomach. On a third occasion, the defendant took the victim to her

mother’s bedroom and began fondling her, ultimately having sexual intercourse with



                                             2
her. The victim reported that the incidents occurred early in the school year. The victim

testified that she reported the abuse on December 9, 1991, by telling her aunt who then

told her mother.



              Janie Shelton, the victim’s aunt, testified that the victim told her on

December 9, 1991, that the defendant had sexually abused her. She said that she

immediately told the victim’s mother. She said that the victim was hysterical when

taken to the hospital. On cross-examination, she said that the victim’s mother guessed

who had abused her daughter.



              Nancy Moore, the victim’s sixth grade teacher, testified that the victim

missed two days of school in September, five days in October and one day in

November. She described the victim as an honest and capable student, but she said

that she noticed a change in the victim’s attitude after her October absences.



              Robert Kelly Dickson, an emergency room pediatrician with the University

of Tennessee Hospital, testified that he examined the victim on December 9, 1991. He

said that the victim could not tell him how many times the abuse had occurred. He said

that the victim told him that nothing had happened in the last month leading up to her

report. He noted one large healed tear of the victim’s hymen that had occurred several

weeks prior to the examination. He stated that the victim’s condition was consistent

with forced vaginal penetration and consistent with the history given by the victim.



              The defendant presented the testimony of one of the victim’s friends,

Elesha Gibson, who testified that the victim and she had skipped school together on

one occasion. She also said that the victim complained to her that the defendant was

too strict.




                                             3
              The defendant testified that he was twenty years old when he met the

victim’s mother. He said that they married in October 1990 and began living in the

Bakertown Apartments where he was a maintenance man. He said that he had

disciplined the victim after catching her with an older boy in the fall of 1991. He denied

that any abuse occurred. On cross-examination, he admitted that he and the victim had

been alone in the apartment several times.



                                              I

              The defendant has filed a motion with this court asking that we remand

the case to the trial court for the determination of the sufficiency of the indictment in

light of this court’s holding in State v. Roger Dale Hill, Sr., No. 01C01-9508-CC-00267,

Wayne County (Tenn. Crim. App. June 20, 1996), dealing with the mens rea element of

the offense not being specified in the allegations. However, our supreme court

reversed this court in Hill and concluded that an allegation that the defendant unlawfully

sexually penetrated the victim would suffice. State v. Roger Dale Hill, Sr., No. 01-S-01-

9701-CC-00005, Wayne County (Tenn. Nov. 3, 1997) (for publication).



              In any event, the indictment in the present case alleges that the defendant

“unlawfully and feloniously did sexually penetrate” the victim. (Emphasis added). The

Tennessee Supreme Court has previously held that the term “feloniously” means “with

a deliberate intent to commit a wrongful act” and, thus, includes intentional acts. State

v. Smith, 119 Tenn. 521, 526, 105 S.W. 68, 70 (1907). Under present law, the element

of recklessness, that is required for aggravated rape, is also established if a person acts

intentionally or knowingly. See T.C.A. § 39-11-301(a)(2). Thus, the term “feloniously”

as alleged in the indictment actually specifies the mens rea necessary for aggravated

rape. The indictment is sufficient.




                                              4
                                             II

              The defendant contends that the trial court erred by excluding admissible

evidence of the victim’s sexual relationship with an adolescent male that was offered by

the defendant to rebut medical testimony under Rule 412, Tenn. R. Evid. The state

argued that the defendant’s motion failed to specify sufficiently the proof sought to be

admitted and the reason for its admission. Following a hearing and the defendant’s

offer of proof, the trial court granted the state’s motion to exclude the evidence based

upon the insufficiency of the notice.



              Rule 412 allows the admission in an aggravated rape trial of specific

instances of conduct relative to the victim’s sexual behavior with persons other than the

defendant if offered to rebut or explain medical or scientific testimony. Tenn. R. Evid.

412(c)(4)(i). However, the defendant must submit a written motion no later than ten

days before trial unless the evidence is newly discovered or relates to a newly arisen

issue. Tenn. R. Evid. 412(d)(1)(i). The motion must be served on all parties and must

be accompanied by a written offer of proof that describes the specific evidence and the

purpose of its admission. Tenn. R. Evid. 412(d)(1)(ii) and (iii).



              The record reflects that the defendant complied with the filing time limit.

Also, it is apparent that the state had sufficient notice of the specific evidence sought to

be admitted by its assertions that both the victim and her alleged partner were available

to deny that they had had a sexual relationship in 1991. Therefore, we conclude that

the trial court should not have excluded the evidence due to any insufficiency in the

notice to the state. However, we do conclude that the evidence should have been

excluded because it constituted inadmissible hearsay evidence as it was. The

defendant’s offer of proof consisted of the testimony of Elesha Gibson and Amanda

Love, both of whom testified that the victim told them that she was having a sexual

relationship with another adolescent in the apartment complex. Both witnesses



                                             5
acknowledged that they had never witnessed any sexual activity between the victim and

her alleged partner. One also stated that she did not know if there was any truth to the

victim’s statements and thought that the victim might have been trying to fit in with older

kids. This evidence is hearsay when offered as truth to rebut the medical testimony.

Therefore, the evidence was properly excluded.



                                              III

              The defendant contends that the trial court erred in supplementing its

instructions to the jury after the jury had begun deliberations relative to the election of

offenses. The record reflects that the state elected the specific instances upon which it

would rely at the close of the state’s proof but outside the presence of the jury. The trial

court neglected to instruct the jury on the election of offenses and the requirement of

jury unanimity in its initial instructions. The jury began deliberations late in the

afternoon and when deliberations resumed the following day, the trial court, sua sponte,

delivered the supplemental instructions relative to the election of offenses. Included in

these instructions was the admonishment that the supplemental instructions not be

given any greater weight than those previously given.



              The trial court is required to give a complete charge of the law applicable

to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986). In

order to insure jury unanimity, when the facts of a case could implicate several

offenses, the trial court is required to instruct the jury regarding the election of the

specific offense upon which the state is relying for a conviction. State v. Shelton, 851

S.W.2d 134, 136-37 (Tenn. 1993). Also, it is within the trial court’s discretion to recall a

jury for supplemental instructions. Burton v. State, 217 Tenn. 62, 70, 394 S.W.2d 873,

876 (1965). In this case, the failure of the trial court to charge the jury relative to the

election of offenses would have been error. Furthermore, the trial court correctly

admonished the jury not to place any undue emphasis on the supplemental charge and



                                              6
to consider it in conjunction with the entire charge. Therefore, we conclude that the trial

court did not err in instructing the jury, sua sponte, after deliberations had begun.



                                             IV

              The defendant contends that the trial court erred in allowing the jury to

resume deliberations after declaring a mistrial. The defendant argues that the trial court

placed undue pressure upon the jury to arrive at a verdict. The state responds that it

was not error to continue deliberations when the jury indicated that progress was being

made and that a verdict could be reached.



              On the first day of deliberations, the jury began deliberating at 3:20 p.m.

Deliberations resumed the next morning after the trial court issued additional

instructions regarding the election of offenses and jury unanimity. At 11:17 a.m., the

jury returned to the courtroom and the following exchange took place:

              THE COURT: All right. Members of the jury, who is your
              foreman? Yes, sir. Have you reached a verdict?

              THE FOREMAN: No, sir.

              THE COURT: All right. Let me ask you this. Do you feel that
              there is any possibility of reaching a verdict?

              THE FOREMAN: No, sir.

              THE COURT: Do you feel that you are deadlocked?

              THE FOREMAN: Yes, sir.

              THE COURT: All right. Is that the consensus of the jury? All
              right. It seems to be. All right --- all right. Enter a mistrial.
              These things happen. Don’t let it bother you. We appreciate
              your service. You’ve been away from family ---

              JUROR NO.3: What does that mean when you have a
              mistrial?

              THE COURT: That means that no verdict is entered. Your
              verdict must be unanimous, as I instructed you.

              JUROR NO.9: We --- we just feel we need more time.

              THE COURT: Do you think you can reach a verdict?


                                             7
              JUROR NO.9: I think we can.

              A JUROR: It’s possible.

              THE COURT: All right --- all right. Then -- if you can reach a
              verdict, that’s what I need to know. You think you can ?

              A JUROR: We’re getting real close.

              THE COURT: All right. Well, that’s fine. If you’re making
              progress, I don’t have any problem with it; but if you’re not,
              then I would enter a mistrial, and it would have to be tried
              before another jury. But, if you feel that you’re making
              progress, then return to the room and continue your
              deliberations.

The jury deliberated for an additional thirty-five minutes before returning a guilty verdict

for one count of aggravated rape.



               “The right of trial by jury may not be impaired or encumbered with

conditions which, in their practical operation, may embarrass or violate the free and full

enjoyment of the right.” Kersey v. State , 525 S.W.2d 139, 144 (Tenn. 1975) (citing

Neely v. State, 63 Tenn. 174 (1874)). “An instruction that coerces a jury into returning a

verdict is bad.” State v. Weston, 506 S.W.2d 946, 948 (Tenn. Crim. App. 1973).

However, instead of an instruction creating the coercion, in this case we are faced with

the question of whether the trial court’s declaration of a mistrial unduly coerced the jury

into arriving at a verdict. We note that the trial court may, in its discretion, order a jury

to deliberate further after it appears that the jury is unable to reach a verdict, Kersey,

525 S.W.2d at 145, and unless a trial court causes a jury to reach a verdict in such a

manner that is “patently not their free and untrammeled verdict, a new trial will not be

granted.” Rushing v. State, 565 S.W.2d 893, 896 (Tenn. Crim. App. 1977).



              In this case, the trial court asked the jury if it was deadlocked. Upon

confirming the deadlock, the trial court declared a mistrial. The jurors themselves

inquired into the meaning of a mistrial and indicated a willingness to work longer toward




                                               8
arriving at a verdict. We cannot conclude that the awareness of the potential for a

mistrial, in this case, unduly coerced the jury into arriving at their verdict.



                                               V

              The defendant contends that the trial court erred in refusing the

defendant’s request for the individual polling of jurors. After the foreman reported the

verdict, the trial court asked each juror to raise his or her right hand to indicate that

each was in agreement with the verdict. The defendant then requested that the jurors

be polled individually to which request the trial court responded that they had been and

discharged the jury. The defendant claims that an individual poll was necessary to

insure jury unanimity and the absence of coercion. The state argues that a showing of

hands is comparable to an individual poll.



              A trial court may not refuse to poll a jury upon request from either the

defendant or the state. T.C.A. § 20-9-508; Craig v. State, 506 S.W.2d 949, 950 (Tenn.

Crim. App. 1973). The object of polling is to ascertain each individual juror’s verdict in

order to insure a certainty in the collective verdict. See Whitwell v. State, 520 S.W.2d

338, 342 (Tenn. 1975). In Geodel v. State, 567 S.W.2d 180, 184 (Tenn. Crim. App.

1978), this court indicated that the trial court should announce the verdict and then

inquire individually into each juror’s agreement, allowing for a yes or no response from

each juror. This process should be followed by the trial court in the future upon

request, because it provides the surest means of verifying the fact of both an individual

and collective verdict by the jurors. However, although we doubt that an en masse

hand-raising necessarily supplies equal certainty of a verdict, we are unable to

conclude on the record before us that the polling as conducted masked a less than

unanimous verdict.




                                               9
               In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.




                                                Joseph M. Tipton, Judge

CONCUR:




Gary R. Wade, Judge




John K. Byers, Senior Judge




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