             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT KNOXVILLE                  FILED
                               OCTOBER 1997 SESSION
                                                                   February 6, 1998

                                                                  Cecil Crowson, Jr.
                                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,                  *      C.C.A. No. 03C01-9612-CC-00462
                                     *
       Appellee,                     *      JEFFERSON COUNTY
                                     *
VS.                                  *      Hon. William R. Holt, Jr., Judge
                                     *
WILLIAM DEARRY,                      *      (Rape of a Child)
                                     *
       Appellant.                    *



                                CONCURRING OPINION

              I concur in the results reached by the majority but differ in the analysis

on the election issue. Jury unanimity, as constitutionally mandated, requires the

state to elect, at the close of its case in chief, which proof it relies upon for a

conviction where evidence of many instances of sexual misconduct are presented to

the jury. Jamison v. State, 94 S.W. 675 (Tenn. 1906); Burlison v. State, 501 S.W.2d

801, 803 (Tenn. 1973); State v. Shelton, 851 S.W.2d 134, 136 (Tenn. 1993).



              In my view, closing argument by the state cannot serve as a substitute

for election. In Shelton, the indictment charged unlawful sexual penetration of one

victim and unlawful sexual contact of two other victims. The supreme court found

the failure to elect was erroneous; however, "[a]s to one count, the error was

harmless, because the proof establishes a single incident, thereby obviating the

necessity of an election by the prosecutor." Id. More specifically, one of three

victims testified to a single instance of partial intercourse; only one indictment

charged aggravated rape. The jury returned a guilty verdict only as to one count of

aggravated rape for that victim. The court concluded that the "jurors must have

considered the evidence of this particular incident in convicting the defendant ...
[and] therefore, the Burlison error ... was harmless beyond a reasonable doubt ...."

Id. at 138.



              While in this case the state failed to elect in the appropriate manner,

the failure was harmless in my view. First, the victim's testimony about oral

penetration was corroborated by the defendant's confession; the proof was strong

as to fellatio. Second, the proof of unlawful touching of the victim's private parts by

the defendant could not have resulted in a conviction for rape of a child, because no

penetration was established. Third, the proof of digital and penile penetration of the

victim was insufficient to support a conviction for rape of a child. The victim first

testified that vaginal penetration had occurred; then she testified that it had not.

When a single witness affirms then denies a fact, absent explanation, it is

considered unproven. See Hughes v. State, 588 S.W.2d 296, 301 (Tenn. 1979);

Taylor v. Nashville Banner Pub. Co., 573 S.W.2d 476, 482 (Tenn. Ct. App. 1978).

In Johnston v. Cincinnati N.O. & T.P. Ry. Co., 240 S.W. 429, 436 (Tenn. 1921), our

supreme court stated as follows:

              The question here is not one of the credibility of a
              witness or of the weight of evidence; but it is whether
              there is any evidence at all to prove the fact. If two
              witnesses contradict each other, there is proof on both
              sides, and it is for the jury to say where the truth lies. But
              if the proof of the fact lies wholly with one witness, and
              he both affirms and denies it, and there is no
              explanation, it cannot stand otherwise than unproven.
              For his testimony to prove it is no stronger than his
              testimony to disprove it, and it would be mere caprice in
              a jury upon such evidence to decide it either way.

Finally, the physician who examined the victim testified that no physical evidence of

penetration existed. Thus, the jury could not rationally have considered any incident

of penetration other than the one incident of oral penetration. Therefore, although

election should have been made, the failure to do so is harmless. Jury unanimity

was not compromised in this instance.
_______________________________
Gary R. Wade, Judge
