            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON

                             DECEMBER 1998 SESSION
                                                                    FILED
STATE OF TENNESSEE,                 )                              August 6, 1999
                                    ) C.C.A. No. 02C01-9708-CR-00319
       Appellee,                    )                            Cecil Crowson, Jr.
                                    ) Shelby County            Appellate Court Clerk
V.                                  )
                                    ) Honorable Arthur T. Bennett, Judge
                                    )
ANTONIO M. KENDRICK,                ) (Aggravated Rape)
                                    )
       Appellant.                   )



                                DISSENTING OPINION

              I write separately to address whether the trial court erred by failing to

require the state to elect the proof it relied upon for a conviction. W hile I concur in

the results of the remaining issues addressed by the majority, in my view, the state's

failure to make an election qualified as plain error. On that basis, I would reverse

the judgment of conviction and remand for a new trial.



              The trial court has a duty to require the state, at the close of its case-

in-chief, to elect which proof it relies upon for a conviction where evidence of more

than one instance of sexual misconduct has been presented to the jury. Jamison v.

State, 94 S.W. 675 (Tenn. 1906); Burlison v. State, 501 S.W.2d 801 (Tenn. 1973);

State v. Shelton, 851 S.W.2d 134, 136 (Tenn. 1993). An election by the state is

required under such circumstances regardless of whether the defendant makes a

demand. Burlison, 501 S.W.2d at 804. The trial court has a duty to properly instruct

the jury so that the verdict of each juror is "united on the one offense." Id. at 804.

An election serves three fundamental purposes:

              First, to enable the defendant to prepare for and make
              his defense to the specific charge; second, to protect him
              from double jeopardy by individualization of the issue,
              and third, so that the jury's verdict may not be a matter of
              choice between offenses, some jurors convicting on one
              offense and others, another.

Id. at 803. The failure of the trial court to require an election or to properly instruct

the jury as to the state's election constitutes plain error. State v. Walton, 958

S.W.2d 724, 727 (Tenn. 1997); State v. Clabo, 905 S.W.2d 197, 204 (Tenn. Crim.

App. 1995)(citing State v. Ogle, 666 S.W.2d 58, 60 (Tenn. 1984)). In Clabo, this

court found plain error because the trial court failed to request an election of proof

regarding the rape of a child victim. Judge Peay, writing for this court, reasoned as

follows:

              The State provided proof that the defendant performed
              oral and anal sex on the victim. These are two separate
              acts, each constituting penetration under the charge of
              aggravated rape. Yet, the defendant was only charged
              with one count of aggravated rape. The court presented
              to the jury the proof and allegations of two acts and
              asked the jury if the defendant could be convicted of one
              count of this act. Therefore, some jurors could have
              concluded that the defendant was guilty based upon the
              proof of the oral sex and not the anal sex, and some
              jurors could have concluded that the defendant was
              guilty based upon the proof of the anal sex and not the
              oral sex. The defendant may have been convicted by a
              jury of less than twelve (12). Since all twelve (12)
              members did not have to find the same facts or draw the
              same conclusions, we find that a grave constitutional
              error was committed in that the defendant may have
              been denied a unanimous jury verdict.

Clabo, 905 S.W.2d at 205.



              The facts here are similar. There was a single count indictment for

aggravated rape. The victim testified that the defendant was armed with a weapon

and forced her to perform fellatio on him for five to ten minutes. As he drove to a

second location, he demanded that she continue to perform fellatio. Upon their

arrival, the defendant forced the victim to engage in sexual intercourse. The jury

heard evidence of at least two separate acts of unlawful penetration. Each act

spanned several minutes and involved different areas of the victim's body and

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differing physical positions. Each occurred at a different location. Although unclear

as to the amount of time that elapsed between the two incidents, the record does

demonstrate that the defendant talked and argued with the victim during that time.

He threatened her, insisted that she prove that she was menstruating, and placed a

condom on his penis. Before penetrating the victim, the defendant stated, "[T]his is

to make up for what you did to me ...." See State v. Phillips, 924 S.W.2d 662, 665

(Tenn. 1996).



              In Phillips, our supreme court observed that "[e]ach act ... is capable of

producing its own attendant fear, humiliation, pain, and damage to the victim. Each

type of penetration requires a purposeful act on the part of the perpetrator." Id. at

665. Here, the victim described both acts in detail. This was not an instance in

which the state elicited detailed information about one act and only general

allegations of other acts. See Clabo, 905 S.W.2d at 204-05. The trial court

instructed the jury that the definition of unlawful penetration included both fellatio

and sexual intercourse but did not provide an augmented unanimity instruction. It

neither required the state to elect nor instructed the jury to determine which act of

penetration could be considered for a conviction. As in Clabo, it is impossible to

determine which sexual act the jurors may have relied upon in reaching their

verdicts. "[E]ach juror was left to choose independently the act(s) of abuse upon

which to base a verdict." Walton, 958 S.W.2d 727-28.



              I should point out that the closing arguments were not transcribed and

are not included in the record for our review. A divided panel of this court has held

that a prosecutor's closing argument may "effectively" serve as an election. State v.

William Dearry, No. 03C01-9612-CC-00462, slip op. at 25 (Tenn. Crim. App., at

Knoxville, Feb. 6, 1998), app. denied, (Tenn., Jan. 19, 1999). While that holding


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might support the view of the majority in that the defendant has failed to provide an

adequate record for the disposition of the issue, I do not believe that the trial courts

should be relieved of the duty to require an election or to instruct the jury that there

must be a unanimous verdict on a single charge. Here, the instructions included no

mention of any election by the state, formal or otherwise. The requirement of an

election is "fundamental, immediately touching the constitutional rights of an

accused...." Burlison, 501 S.W.2d at 804. In consequence, I would reverse and

remand for a new trial.




                                                  _____________________________
                                                  Gary R. Wade, Presiding Judge




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