         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs March 14, 2006

                 STATE OF TENNESSEE v. JAMES C. OSBORNE

                  Direct Appeal from the Criminal Court for Wilson County
                             No. 02-1340    J. O. Bond, Judge



                   No. M2005-00893-CCA-R3-CD - Filed September 7, 2006




DAVID G. HAYES, Judge, separate concurring.


       I join with the majority in affirming the defendant’s conviction but write separately for the
reasons expressed below.

       The majority concludes that three separate acts of rape were committed by the defendant, and
accordingly, an election of offenses was required. Following review of the record, however, I
conclude that the proof supports but a single conviction of rape, and, thus, an election of the separate
acts was unnecessary.

       The record reflects the following facts:

        On direct examination, the victim testified that the defendant only “tried” to penetrate her
while in the car. However, on cross-examination, the victim stated, “He penetrated me one time in
the car,” but she immediately explained “just barely.” The victim stated that during the encounter,
“He forced my legs up where my knees were beside my head. He had me bent in half.” She related
that because he was “hurting her so badly,” she opened the passenger side door and fell onto the
ground. She further explained, “ I did not want him to penetrate me. I told him I would give him
oral sex if he would not penetrate my vagina. This went on for a second and I stopped.” At this
point, the victim was then placed on the hood of the car and was vaginally penetrated by the
defendant.

        As observed by the majority, rape is generally not a continuous offense, as each act of
intercourse constitutes a distinct and separate offense. Phillips, 924 S.W.2d at 664. However, as
noted in Phillips, our supreme court has opined that separate acts of intercourse may be so related
as to constitute one criminal offense. Id.
        Factors relevant to this case to determine whether the multiple acts committed constituted
one continuous criminal offense include: (1) the ongoing nature of the sex acts, here broken only by
brief interruptions; (2) the short amount of time elapsed between the discrete conduct; and (3) the
accused’s intent. Id. at 665. See also Adrian Arnett, No. 03C01-9811-CR-00395 (Tenn. Crim. App.
at Knoxville, Feb. 2, 2000), aff’d 49 S.W.3d 250 (Tenn. 2001) (intervening seconds between the two
penetrations did not provide a sufficient lapse of time so as to permit the development of a newly
formed intent).

       For the above reasons, I find that election of offenses was unnecessary. In all other respects,
I concur.




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