*1 of Tennessee STATE
Courtney KNOWLES Tennessee, Supreme AT JACKSON. March 2015 Session July Filed *2 Memphis, Ganguli,
Juni Tennessee S. Courtney for the Knowles. appellant, III, Slatery Attorney H. Herbert Gener- Blumstein, Reporter; S. So- al and Andrée Willis, General; Rachel E. licitor Senior Counsel; Weirich, Amy P. District Attor- General; ney Nichols and Jennifer Winnig, Assistant District Attor- Samuel General, neys appellee, for the State of Tennessee.
OPINION CLARK, J„ A. delivered
CORNELIA Court, opinion of the in which LEE, C.J., JEFFREY S. SHARON G. KIRBY, JJ„ BIVINS, joined. and HOLLY WADE, J., dissenting R. filed a GARY opinion. appeal in this dispositive issue inaccuracy prosecution’s in the
whether an plain amounted er- offenses ror that entitles the defendant relief. Although the Court Criminal subject by failing to the election erred hold, analysis, we issue to after revievnng pursuant thoroughly the record doctrine, that the elec- tion not entitle the defendant error does inaccuracy, the election Despite relief. any sufficiently specific to eliminate would return substantial risk Additionally, a non-unanimous verdict. provide a com- has failed to in the trial proceedings plete record circum- Accordingly, under these court. affirm, stances, separate on the stated, that, Ap- grounds January the Court of Criminal T.M. testified upholding defendant told her that he peals’ judgment the defendant’s had “licked” the victim. immediately conviction child. The defendant then statement, stating
recanted the that he made statement to force T.M. to and Procedural I. Factual *3 him Background [her] “make leave house.” T.M. al- stay the defendant to in lowed her resi- 2007, Shelby August County In Grand and not report dence did the defendant’s (“the Courtney Knowles Jury indicted de- admission law enforcement authoi-ities. fendant”) rape for two counts a child. April younger daughter In T.M.’s The, alleged rapes victims were the hospitalized suffered stroke and was daughters, of half- minor the defendant’s victim, about a month. in The then girlfriend, and live-in T.M.1 Before sister grade, accompanied T.M. third and the trial, agreed to sever the two hospital. sug- defendant to the At T.M.’s 2012,2 January counts. the trial gestion, the defendant drove the victim court trial on the first conducted home from the hospital pack change indictment, count of the which related necessary and other clothes items. At tri- (“the victim”) daughter T.M.’s oldest and al, provided the victim following de- January that “between charged scription of what occurred when she and 21, 2007, ... and did [the defendant] the defendant at then- arrived' home: unlawfully intentionally sexually pene- and Q: Okay. victim], happened you What when than person trate more [the (3) age day? went-home that years three but less than thir- (13) age.” years teen Well, getting A: we was everything ready, and [the defendant] then called trial, At T.M. testified defen- room, in my me and all he took into her dant moved residence at “1680 off, just touching clothes and he was on Memphis July Claire” June me; and he made private me touch his 2004, to her live with her chil- and three penis try- area —his he area. And was that, dren. T.M. explained although she ing to me penis show how suck his living together and the defendant were by describing area finger. with his boyfriend girlfriend, and the defendant Q:You he fin- said described with his half-brother, also her sharing was the two ger? with finger? he do his —what biological the same father. The victim licking finger A: He was his to show me referred to the defendant as her “Uncle ‘ what to penis. do with his Courtney” and testified that she was un- aware that the Q: you defendant was her mother’s try you Did and what do he asked ’ boyfriend a baby.”3 until T.M. “had tó do? anonymity ’2010). Trial, protect 1. To of minor'chil- .federal which occurred dren, we will refer to their mother her February as well 'as the defendants’ initials. (cid:127) appointed continued with dissatisfaction counsel, large part, lengthy caused de- court, Following jury 2. trial in federal lay between the indictment and trial in this exploita- defendant was convicted of sexual case. possession of a minor tion and of materials minor, involving exploitation the sexual 3.T.M. and had two children upon underlying based the same facts that together, the first born in March 2006 and the gave charges. rise to the state See Unit- second in March 2007. y. Knowles,. (6th ed States F.3d 381 Cir. Well, mama, day she and Yes, my left that A: ma’am. store; she went to the and said you. touching was' on Q: said he You just the cam- walked with defendant] touching you? was he Where lying couch. he era. I .And breasts, my me on A: had touched He off; my took clothes and he said—he well, vagina and my my private area — my my legs up; he had shirt and my butt. (indiscernible). my playing He was with Q: room was this in? What bottom; breasts, vagina, my my and room. MyA: mother’s my play over to he turned me that she scared my vagina The victim testified too. area bottom Even- cried for mother. that she occasion victim also described one stopped, and he tually, abuse between the first incident of *4 The hospital. drove the victim back tape, riding making of the when she was hap- T.M. victim did not tell what had to her the defendant’s vehicle and he drove pened. a hotel: the defendant victim testified that The pick gonna I’m that he thinking was “many sexually to abuse her continued somebody but me to the up, he took times,” “like the occurred and that abuse hotel, my off, took all and he was clothes in the shower every day like when were me, touching licking my vagina; on and gone or my or mother was tub when out, penis he—had his but he weren’t the defen- The victim asleep.” stated my sticking it He had vagina. inside breasts, vagina, her and dant touch .would top moving on back and forth. And like that he would “lick [her] buttocks and long sperm he it so that that came did vagina.” not ask the The defendant did out, like, you and he was “Look what again, but he once penis victim to lick his make me do.” his “in attempted penis [her] to insert T.M., Sunday 2007, while Easter On victim inci- The described that bottom.” errands, running found the defendant’s dent, that the “had me stating defendant glove video camera inside her vehicle’s my bed—it was the like on mama’s mil- eight compartment. She noticed bed; on the: bed of her and he was middle (“the in- tape tape”) limeter videocassette too; bed, his and he knees was the and tape The showed side camera. in the The my bottom air.” victim on the room sofa living victim seated to he com- stop, asked and house, although and T.M. could T.M.’s plied. video, on the she see the defendant’s face voice, that, she recognized than the defendant’s and victim testified on more occasion, “touching victim’s] one the defendant would molest saw the defendant home immediately T.M. drove vagina.” her she was in the shower and while night about the awaken in the and confronted defendant many times she would girl was visible on the touching tape. to her. The Another also find the defendant although willingly tape, that the used- and reported victim tape that portion of the telephone photographs his take showed T.M. cellular breasts, girl, while he not show T.M. the vagina, and included this did buttocks re- naked, portion victim. T.M. she that included the she testified camera, tape the video used video camera moved defendant once and, day, tape to following she took the of the abuse. tape make paid con- to have the as follows: camera store victim incident described digital system. to a disc which was still tents transferred video saved the store’s (the “DVD”). provided copy T.M. then the new of the police. DVD T.M. admitted that
T.M. later informed the defendant days she had waited seventeen after view- tape. made a DVD of the Over she had tape video defendant molest- weeks, T.M. the next few and the defen- ing the victim before contacting police argued over the whereabouts of the dant and also that she had never reported tape, which T.M. and the had hidden DVD 2005 incident where the defendant admit- During handbag. fight, their final inside “licking” victim. ted When asked on April which occurred the de- why immediately she gun to T.M.’s head contact the put fendant kill police, responded her. When the defen- T.M. threatened she “was residence, T.M.’s dant left she called “people family scared” and that speaking to hung up opera- but before didn’t know about relationship” [her] with tor. the defendant. call, hang-up As a of the 911 result tidal, At played portion Po- Sergeant Memphis Judith Blue of the testimony, the DVD the victim’s (“MPD”) Department dispatched lice herself, victim identified the defen- Sergeant Blue T.M.’s When residence. voice, dant’s and the defendant’s hands scene, T.M., spoke she arrived at the *5 touching body. her The victim also identi- who stated that she had been involved a fied handwritten that *6 injuries to the vic- Ms. Discenza described ing fashion: tim that were more consistent with “some going although to elect We’re we the— penetration.” Ms. Discenza type of sexual going specific, are not to have date testified that she had also examined the going alleged rape are to elect act of the report in that following victim occurring April, of a child at then-boyfriend T.M.’s had “touched her when the victim [T.M.’s residence] physical Ms. Discenza’s 1998 down there.” from I hospital. defendant returned the three-year-old vic- examination of the then think that’s the one that the most vaginal tim no or anal lacerations revealed detail. on or redness. Based her 2007 examina- victim, The trial court then asked to opined
tion of the Ms. Discenza the State specific as to penetrating that the victim had sustained a more the element sexual by “elect[ing] injury vagina penetration to which was not due to either fellatio or cunnilingus.”5 prosecutor initially assault. The re- reported the 1998 currently of the in effect 5. Tennessee Code Annotated section 39-13- 4. text statutes 501(7) (2014) penetration defines sexual meaningful differences from contains no intercourse, fellatio, cunnilingus, "sexual anal of the of the statutes in effect at the time intercourse, intrusion, any or other however Thus, quota- proceedings in the trial court. slight, any part person’s body any of a or of opinion are to the tions and citations genital object openings of into the or anal current statutes. victim’s, defendant’s, any per- other n sentence, I plied, you imposed' twenty-five-year don’t want do that. want “I me,” “I if I just thought make service consecutive the defendant’s sen- to, you if I wouldn’t in the decided didn’t tencé aforementioned federal case. want 20, 2012, The trial court that On trial court make me.” insisted issued an elect prosecution denying sexual order the defendant’s motion for 6, 2013, relying upon February it was to estab- new trial. On trial child, rapé “I stating, lish the court judgment dismissing offense entered a say rape by eunnilingus child charging rape need defendant’s second count by. ... of child I rape fellatio. don’t [o]r child. any digital penetration.” ... recall appealed The defendant then replied “go- prosecutor then she was Court of Appeals, challenging Criminal go eunnilingus for on that one be- sufficiency sup- evidence to testimony cause more there was about port his conviction.7 The Court of Crimi- continuing of rape as a act of a child nal Appeals held evidence was eunnilingus.” The trial court then recited support sufficient to the defendant’s con- charge on election as follows: Knowles, viction. State v. No. W2013- cáse, [Sjtate In this has elected to 00503-CCA-MR3-CD, 2014 WL submit, consideration, your the al- 5, 2014). (Tehn.Crim.App. May *8 leged of rape of a child cunnilin- act However, in affirming the defendant’s con- gus occurring April at [T.M.’s viction, Appeals the Court of Criminal sua residence], when [the victim] sponte an raised additional issúe: whether defendant] home the hos- returned offenses, election of State’s toiletries, pital to obtain clothing, and whereby mistakenly identified food. penetration, of sexual method object
The defendant repeated this was instruction con- instruction, testify, election, did not put cerning and did constituted reversible any on proof. additional rendering Based error. Id. at *5. In its deci- sion, election and presented, the evidence of Criminal stated jury convicted the defendant on the “[ajlthough the defendant ha[d] (cid:127) charged offense of of a child.6 Fol- evidentiary framed his issue as suf- one’ lowing sentencing hearing, the trial court ficiency, perceive we' the real issue to b£ body, court, son's but emission of semen 'is not re- conviction in the trial which was de- *7 quired.” “Cunnilingus” by is defined the by Appeals nied the Court of Criminal be- Jury Tennessee Pattern Instructions as "a sex represented by cause defendant was still by accomplished placing act the mouth or 21, 2013) February counsel. On the defen- another,” tongue vagina on or in of dant, counsel, through filed a motion in the whereas "fellatio” defined as "a sex act Appeals seeking of acceptance Court Criminal accomplished organ with the. male sex appeal explain- of his notice of late-filed lips the mouth or of another. Intrusion into ing mistakenly that he had that the believed . alleged required.” victim's mouth is not appeal thirty days notice of was not due until (17th ed.2014). T.P.I.-Crim. 10.02 after the second count of a child of had 11, 2013, been tried. On March the Court of parties' 6. closing arguments are not in- Appeals granted Criminal the defendant’s mo- in appeal. cluded the record on tion, requirement timely waived the of a filed 7. The defendant failed to file his notice of appeal, granted notice of the defendant appeal thirty days within of the trial court's days ten appeal: to file a notice of defen- Instead, denial of his motion for new trial. complied, appeál proceeded. dant and his pro filed a applica- se Rule 10 tion extraordinary appeal following for his time, any even rights though at party properly elected whether in the motion for a convic- was not raised seeking the error for which offense on assigned appeal.” or as error Appeals of a new trial Court' Criminal Id. the tion.” 36(b). P. We refer this R.App. state’s inaccu- Tenn. to conclude went on beyond discretionary consideration waived is was “harmless error rate election *7; so, doing error” review. See Grind “plain sues as Id. doubt.” reasonable State, 219 n. 12 Appeals reviewed of Criminal the Court staff (Tenn.2009). properly as the defendant the error appeal by rais- it for review preserved election issue was Although the trial, for new rather it in motion challenge closely related the defendant’s doctrine. Id. error applying than evidence, sufficiency of the to the separate, and the Court of claims are application the defendant’s granted We applied plain P. Tenn. Criminal should appeal. R.App. permission assessing review when effect 11. election, the inaccurate rather than evalu Analysis II. if it ating properly the error had been as preserved, Bishop, See State v. of Review A. Standard (Tenn,2014) (finding 43-44 er dispute is no There Appeals, of Criminal. ror when the Court description prosecution’s motion,” addressed an “on its own issue inaccurate and that penetration was parties not raised and failed repeated inaccuracy was review). Whether the apply plain error Appellate Rule Tennessee instruction. has is a plain error doctrine been satisfied 3(e) provides Procedure noyo. question of law which we review de 501, 506 Cooper, jury, no issue State in all cases tried n (Tenn.2010). Applying de novo re predicated shall be for review presented view, now whether the or we will determine in the admission exclusion upon error repeated evidence, granted or inaccurate jury instructions offense parties or instruction as to element jurors, refused, misconduct entitling or the defen counsel, other action committed amounts to case, or dant to relief. occurring during the trial trial is upon which new ground other B. Election Offenses specifically
sought, the same was unless trial; other in a motion for a new stated charges indictment [an] “[W]here issues will treated such wise. span crimes occurred over sex .... waived time, of unlawful sexual contact evidence added). Here, victim al between the defendant (Emphasis charged occurring during the time inaccuracy legedly object instruction, is admissible.” State nor did the indictment election and *8 Rickman, 824, (Tenn.1994). trial; 828 876 S.W.2d it in his motion for new he raise State, however, must elect at the close rather, sufficiency challenged he Thus, particular offense properly of its case-in-chief the he did of the evidence. a Id: seeking for which it is conviction.- plenary ap election issue preserve the this Nevertheless, primary purposes of two appellate pellate review.' a criminal preserve are “to authority requirement an to “consider courts have the the state constitu- right under the substantial defendant’s that has affected error 424 a,unanimous verdict, date, jury electing specific and to In the absence of a
tion prose- may “identify some latitude a prosecutor particular allow the-State against acts committed type cution of criminal elect that abuse and offense” frequently who are unable young children multiple types victim suffered abuse. to-identify specific par- date on which a Additionally, prosecutor Id. at 138. (citing was committed.” Id. ticular offense may ask the child victim “to describe Shelton, 134, v. 851 S.W.2d 137 State unique surroundings or circumstances that (Tenn.1993); Brown, State 762 S.W.2d incident,” help identify may (Tenn.1988)). 135, 137 Because the elec- “identifying] an assault include with refer- requirement safeguards tion a criminal de- meaningful to a in [the ence event child’s] fundamental, right constitutional fendant’s life, school, beginning such as the verdict, per- to a unanimous errors birthday, or a relative’s visit.” Id. Ulti- taining sufficiency prosecu- mately, this Court in Shelton concluded subject plain tion’s election are error “[a]ny description identify that will State, review. Burlison v. 501 S.W.2d prosecuted offense for is suffi- (Tenn.1973); see also State v. Ken- added). However, cient.” Id. (emphasis (Tenn.2001) (re- drick, 38 S.W.3d similarly this emphasized Court has versing conviction under doctrine requirement applies the election to of- although election of offenses as fenses, not to supporting the facts each appeal); not addressed direct the' State element of the offense. is true be- This (Tenn. Walton, 958 S.W.2d 726-27 required cause a is not to “unani- 1997) (reversing convictions as error mously agree as to facts supporting par- properly for State’s failure to elect of- long ticular element of a so crime as the fenses, although not parties); raised jury agrees guilty is [defendant] Clabo, State Adams, charged.” of the crime State v. (finding Crim.App.1995) plain error based (Tenn.2000). offenses). on the failure to State’s elect review, case, applying plain appel- prosecution When at late courts must bear in tempted mind alleged elect “the act of requirement merely a means occurring April, child at 1680 protect which to right to a unanimous Claire when the victim and defendant re right perfect verdict. There is no to a hospital,” turned because “that’s election, indeed, as this Court has the one had the most detail.” The recognized, requirement may the election point trial court at that insisted that the in variety ways. be satisfied prosecution specify also the facts it was relying upon to establish the element of Shelton, example, For in State v. sexual and “elect fellatio either may Court detailed how the suffi- or cunnilingus.” In this respect, the trial ciently particular elect a in a sex offense W(hile Here, only court erred. one offense was crimes case. the Shelton Court held charged, and as this Court stated merely specifying span days Adams, the State facts need elect the alleged wherein the abuse was to have election, is relying upon particular to establish a occurred was not a sufficient [Sjtate prosecution’s element of the emphasized that offense. The “the is not date, required identify attempted place, election of a the-particular date of significant sufficiently the chosen that “a par- specific, offense” and noted event identifying ticular offense can often be with- without pen identified Shelton, etration, out a date.” to safeguard the defendant’s 137. *9 court; (2) on the breached a clear and to unanimous verdict the a offense rule, law; (3) unequivocal the error a ad- rape of child. a versely affected substantial Nevertheless, at court’s insis- the trial (4) party; the error was not complaining tence, was proseetitor that she the stated (5) purposes; tactical sub- waived for and cunnilingus.” As the go to for “going stake; is, justice stantial is at the noted, this deci- Court of Criminal “ significant so ‘probably error was that it because, on an “obvious sion was mistake” ” outcome of trial.’ v. changed the the State elected, the victim testified the date Hatcher, (Tenn.2010) 788, fellatio, by pen- penetration not Smith, 274, (citing 282- Knowles, 2014 by cunnilingus. etration (Tenn.2000)). any If one these five 1831018, per- WL at *7. trial court satisfied, grant criteria is not will not it instructed petuated this mistake when relief, complete and of all consideration follows: jury on the State’s the necessary five factors is not it is when [Sjtate case, In this the has elected from record clear the that at least one of al- your for the submit consideration the cannot be factors established. Id. [cjunni- [cjhild [rjape act of of a leged occurring at 1680 lingus April Considering the plain error crite Claire, TN, Memphis, the victim when ria, persuaded not we are that the error home and defendant returned so significant the State’s toiletries, clothing, hospital to obtain changed “probably .it the outcome of the food. trial.” Id. The error not a here did create risk of a substantial verdict non-unanimous agree Ap- with the Court of Criminal We rape the offense child. The a inaccurate, peals that the election was due State’s election tied the for which conduct require trial court’s decision seeking specific to a conviction penetration State to choose date, place, very specific and a specific identifying error in cunni- prosecutor’s and, vic readily identifiable event lingus. Because defendant day her younger tim’s life—the sister had object or comment contemporaneously , a hospital. and was taken to stroke upon or the trial the State’s election meaningful event This alone would court’s instruction it as error raise identify single sufficient been trial, his motion for new our review is child, rape for charged offense pursuant plain error doctrine. was sought. which conviction The victim Plain Error Review C. unequivocally the ele regarding testified penetration by If a has not other of sexual ment fellatio. issue, for properly preserved important point an re of this purposes wise view, appeal bears the burden of trial court erred persuading he prosecution facts requiring court entitles to elect the appellate Bledsoe, upon to ele relying him to 226 S.W.3d it was relief. State establish 355,(Tenn.2007) pros (citing States when the United ment Olano, already sufficiently ecution had elected 507 U.S. 113 S.Ct. (1993)). reviewing by identifying A L.Ed.2d 508 offense child residence, date, place, grant court T.M’s will relief under event, following significant when the victim error doctrine unless the five and (1) clearly met: returned home from criteria are the record toiletries, clothing, trial to obtain hospital establishes what in the occurred *10 426 jurors unanimously period the time within the State’s election.9 long as the
food. So type jury of Because and the penetration sexual the State’s election that some found date, instruction a at the elected identified date and location on the elected occurred meaningful event in the during significant the elected and referenced place, and life, event, right inaccuracy concerning constitutional victim’s the defendant’s satisfied.8 means which the element of sexual verdict to a unanimous was. not required agree penetration accomplished to cre- jurors were of a establishing the element ate substantial risk non-unanimous upon facts child, they required rape were verdict as to the of a penetration; sexual offense injustice, likely that sexual of or cause a substantial or only, agree penetration to Adams, change 24 at the outcome of the trial. occurred. some sort Johnson, 297; v. also State see Notwithstanding sugges- the dissent’s (Tenn.2001) (“[S]o long as the 633-34 tion, contrary our is not rationale engaged that the jurors agreed defendant presumption that the well-established charged, in contact on the date sexual given by all follows instructions the trial was afforded constitutional Rather, grounded court. our decision unanimity. This right juror to is true even upon equally principle well-founded jurors may though some of the have based “[j]urors solitary do sit in isolation on one finding touching, their and' others booths parsing instructions subtle their may finding based on the other meaning way shades same Lemacks, 996 touching.”); State S.W.2d lawyers might. among Differences them (Tenn.1999) (refusing require 171 interpretation may of instructions prosecution responsi- elect criminal process, out in thrashed the deliberative bility liability seeking or direct when understanding of with commonsense single charged conviction for offense light instructions in of all that has stating driving under the influence and place likely prevail taken at trial had been afforded his Boyde over technical hairsplitting.” to a unanimous verdict even some 370, 381, California, 494 U.S. S.Ct. jurors finding guilt based their on 1190, (1990); see L.Ed.2d also responsibility criminal while others based Hall, on guilty liability). their direct verdict 1997) Here, (quoting Boyde). proof at jurors overwhelmingly here were instructed trial established that the law and informed that rape were order defendant committed the offense of child, residence, guilty find the defendant in April child T.M.’s they required proof beyond hospital- were find a on the the victim’s sister date penetration. reasonable doubt for a common- ized stroke. Viewed 39-13-522(a). They See Ann. Tenn.Code fashion and in sense the context the trial further only proof, inaccuracy were instructed to consider in the election and suggests presented, prosecutor 8. The dissent that the victim's testi- had been and the mony regarding touching agreed the trial court's statement. "private ."vagina” possibly area” and also amounted to sexual distinct from 9. The “con- trial court instructed cunnilingus. Again, fellatio deciding sider State’s election] penetration is not determinative under the proven whether or not the defendant has been note, however, facts of this case. We guilty beyond a reasonable doubt of the of- charge trial státed charged court confer- in the indict- fenses and included digital penetration ence that no evidence of ment.” *11 ord, despite the of from this regarding questioning instruction Court jury the closing oral about argument the not create sub- penetration did arguments court. verdict,- made before the trial risk non-unanimous stantial Consequently, we are unable determine likely or injustice, a substantial cause effect, any, parties’ closing the what outcome of the trial. change the arguments on the- inaccurate only find one the Although we need jury instruction.10 We note that sev conclude that plain lacking criteria error Court of panels eral different the Crimi relief, is not our entitled the nal that a failure to have held inaccuracy the decision instruct the about the State’s properly by plain is bolstered the amount to may cured offenses a record that provide failure to defendant’s prosecutor’s closing argument pro if it occurred the clearly establishes what vides an effective substitute for the miss above, when As trial court. stated See, Busby, e.g., instructions. State v. plain analysis, defen- undertake M2004-00925-CCA-R3-CD, No. 2005 WL persuading us dant bears burden 711904, at (Tenn.Crim.App. Mar. *6 Hatcher, is See that he entitled relief. Kimbrell, 2005); State v. M2000- No. Moreover, at 808. under Rule 02925-CCA-R3-CD, 2003 WL at Appellate Rules 24 of the Tennessee 15, 2003); Apr. *23 (Tenn.Crim.App. State Procedure, appellant has the burden of McCann, No. M2000-2990-CCA-R3- “a appellate court with tran- providing CD, (Tenn.Crim. at *5 WL part pro- of the evidence script of such 17, 2001); App. Dearry, Oct. No. fair, convey ceedings necessary as is 03C01-9612-CC-00462, at WL complete accurate and account what 1998). (Tenn.Crim.App. *13 Feb. We with to those issues transpired respect recognize that involved a these decisions appeal,” or in the the bases of are' missing election instruction rather than such a “a transcript, absence of statement inaccurate instruction. The défendant’s from the proceedings the evidence or provide complete failure to of the record RApp. P. available means.” Tenn. best proceedings below also bolsters our conclu 24(a)-(b). to deny sion him relief under the error doctrine. earlier, parties’ closing
As we noted otherwise, are not arguments part record be Although implies the dissent Court, has straightfor- fore this and the our decision in this case application attempt supplement no rec ward of the well-established made 10. No arguments jury charge transcript closing stated in the has election as part appeal. argued cunnilingus been made of the record instead of fellatio. defendant, However, counsel for the who was "Having responded, The defendant's counsel case, provided counsel con also trial County, Shelby tried cases in I can tell flicting argument accounts at oral before probably Court that the D.A. followed prosecution argued during what the Court of instructions, which included the erroneous closing arguments at the court. When trial However, point instruction.” then Court by this what the District first asked out ed that this answer inconsistent Attorney argued during closing arguments hé stating, you response, just his earlier “But argued responded, "The D.A. defem they you told me when I asked earlier perform had forced victim to fella dant] closing argu specifically argued fellatio in During argument, the defen tio.” rebuttal re ment." defendant’s counsel then again whether his dant’s counsel asked sponded, my your honor. "That’s recollection argument closing recollection of trial I mislead the Court.” don’t want to suggested was also confused D.A. Because, however, carefully- constitutional pathy. have error doctrine. We get way principles inaccu- sometimes light record
reviewed might qualify just as a it what otherwise concluded rate election my I col punishment, risk to defen- must dissent no substantial posed leagues. principle to a unanimous The fundamental at is right constitutional dant’s fully is the to a unanimous conclusion is line sue here jury verdict. Our verdict, I, 6,§ in no art. see Tenn. Const. principles with constitutional *12 admittedly egregious requires specific the State elect way by the skewed jury relying upon it is for a conviction of this case. The heard evidence facts guilty of more than proof and found the defendant when the hears evidence rape of a of sexual beyond a reasonable doubt of one instance misconduct. State Johnson, 628, inaccuracy prosecution’s in 53 630 child. The 2001). Regrettably, is of the State misidenti and the instruction little for of consequence charged in the context of this case and fied the factual basis error, of simply rise to the level fense this instance. Because does inadvertent, overturning warrants although clearly which served to un to a unani jury’s verdict. dermine the fundamental verdict, I trial mous believe a new III. Conclusion should ordered. conclude that is not
We History I. Facts and Procedural to relief under the entitled inaccuracy in because the doctrine 2007, August Courtney of Knowles regarding the facts State’s relied (the “Defendant”) for was indicted upon to establish the of sexual element rape daughter of minor of his half- significant was not that it so sister, T.M., girl- was also his who live-in changed “probably of the tri- outcome provided friend. The that “be- indictment Hatcher, al.” 310 808. Accord- 1, 21, 2007, January April 2005 tween and ingly, affirm the conviction defendant’s unlawfully ... Defendant] did [the rape appearing child. It the de- intentionally sexually penetrate vic- indigent, are appeal fendant costs tim], (3) than person years more three to the taxed Tennessee. (13) years of age but than thirteen less age.” WADE, J., R. dissenting GARY filed proof The State’s established that opinion. 2005, April of when the victim inwas third WADE, J., dissenting. GARY R. grade, hospitalized. her sister was The cases, it frequently “Hard has been ob the victim from the Defendant drove home served, clothes, food, apt hospital are to introduce law.” to retrieve and toi- bad residence, Wright, Rep. Eng. Winterbottom letries. While at their the De- (1842). off’; The same is true of “took all clothes [the victim’s] fendant area,” including “cases in ... moral ... indignation “private touched her butt”; by egregious vagina is aroused” and forced “[her] -[her] facts. Glanville Williams, The Sanctity perform and the on him. In addition her fellatio of Life (1957). incident, pre- Law April Criminal The here, convicted of other instances of a child and evidence several sented (1) already serving forty-year January sentence for of sexual misconduct: offenses, sym related federal no told T.M. that he had deserves the Defendant charged ... in- victim; (2) Sunday ] offense[ on Easter “licked” the dictment. tape a video T.M. discovered the vic- touching the Defendant footage of added.) (Emphasis found the victim testified vagina, and the tim’s guilty, Defendant and the trial court im- “play[ed] with [her] the Defendant posed twenty-five years, a sentence breasts, bottom” vagina, [her] [her] consecutively to a prior be served federal occasion; (3) unspecified on an The Court Criminal sentence.1 January 2005 incident between date properly concluded State’s elec- discovery tape video and the in error because no tion was there was the victim to a hotel took the Defendant cunnilingus during proof room, “lick[ed] the Defendant where Knowles, incident. State v. No. W2013- back and penis rubbed his vagina” and 00503-CCA-MR3-CD, 2014 WL victim top” vagina. of her forth “on 2014). (Tenn.Crim.App. May at *7 Nev- Defendant had sexu- also testified ertheless, *13 court affirmed the convic- touch- every day” by “like ally abused her tion, error holding was harmless “lick[ing] [her] areas and private beyond a reasonable doubt because “the vagina.” particularized victim’s articulate and testi- mony single act of penetration by case-in-chief, the At of its the close very specific fellatio under circumstances State, proceed on a which had chosen requirement ... satisfied] una- charge, to seek conviction single elected nimity despite the State’s inaccurate elec- rape of a child alleged on “the act of based added). (emphasis tion.” Id. 2005 ... when the occurring April[ ] from returned [the Defendant] victim and Analysis II. hospital.” The trial court directed In order to ensure defendant’s consti- pen- specific to elect a State tutional to a unanimous verdict etration, cunnilingus. chose and the State particular charge, on a whenever the evi- election, the trial upon the State’s Based multiple dence includes instances of mis- following instruction provided court support charge, conduct that could jury: State must elect at the close its case-in- ease, has elected [S]tate In this seeking it is chief the offense for which for consideration the al- your submit Johnson, 630; conviction. 53 S.W.3d at by Rape leged of a Child Cunni- act Kendrick, State lingus occurring in (Tenn.2001). previously This Court has residence], when the victim and [T.M.’s of the explained purposes rule: home from the returned [the Defendant First, it ensures that a defendant is able toiletries, clothing, hospital to obtain prepare for make defense for a food. Second, charge. pro- specific election against jeopar- jury, you are to con- tects a defendant double Members alleged deciding dy by prohibiting retrial on the same act sider Third, charge. specific has been enables the whether or not the [Defendant appellate trial court and the courts proven guilty beyond a reasonable doubt involving exploitation of a re- rials the sexual record indicates that the Defendant 1. The Knowles, 623 forty years minor. See United States v. for ceived a total sentence Cir.2010) (6th convictions, (affirming the Defen- ex- F.3d 381 which included sexual federal convictions). possession mate- dant’s federal ploitation a minor and Adequacy legal sufficiency of the evi- A. of the Record review the for important most reason dence. The majority indicates that the omission however, requirement, is the election arguments closing pre- the record jurors deliberate that it ensures pared precludes this appeal on the same render verdict over and determination, view, in my relief. This offense. faulty premise1 l'ests on the that an improp- by closing er election can be cured argu- Adams, State ment. . 2000). mandating an rule Although this has never before to require as the State to not so inflexible may held that an be cured particular date of a chosen identify the closing argument, the State’s a.series Shelton, State offense. unpublished decisions our Court of (Tenn.1993). “Any description that Appeals suggests Criminal that when identify prosecuted offense for the will election, closing there is no the State’s Thus, Id. at jury is 138.' sufficient.” argument may serve as if it substitute particular type “a identification of abuse effectively clarifies evidence the sufficient,” may may “unique be sur- relying upon particular State is for a roundings help or circumstances that See, charge. e.g., v. Busby, No. Id. identify an incident.” M2004-00925-CCA-R3-CD, 2005 WL instance, .however, prosecutor at *6 Mar. (Tenn.Crim.App. *14 the became confused about time frame and 2005); Kimbrell, State v. No. M2000- acts, 'electing prosecute criminal an the 02925-CCA-R3-CD, 1877094, 2003 WL at act of sexual misconduct not occur did 15, 2003); (Tenn.Crim.App. *23 Apr. State during 2005 Because incident. McCann, No. M2000-2990-CCA-R3- Defendant, counsel, through his failed CD, (TenmCrim. 1246383, 2001 WL at *5 election, clearly to challenge the erroneous 17, 2001); App. Oct. v. Dearry, No. appellate governed by is review 03C01-9612-CC-00462, 1998 WL at course, plain Of error re- doctrine. 6, 1998). *13 (Tenn.Crim.App. Feb. I con lief is following warranted crite- cede, therefore, majority opinion that the ria are satisfied: precedential has some support. my view, however, “closing argument by the (1) clearly what record establishes [Sjtate cannot a serve as substitute for court; (2) in the trial a occurred clear election.” Dearry, 1998 WL at *15 unequivocal rule of -law breach- (Wade, J., indicated, concurring). As one ed; (3) a substantial of the accused purposes of the election doctrine is affected; (4) adversely the accused is able to “ensure[] waive issue for tactical rea- prepare for and make a defense for a sons; (5) consideration of the error Adams, specific 24 charge.” at S.W.3d necessary justice. is to do substantial 294. This purpose is not achieved if the Dotson, 450 State v. 49 properly State fails to elect at the close of 2014) Gomez, (quoting State v. 239 S.W.3d its attempts case-in-chief and then to recti ' (Tenn.2007)). majority has fy during closing argument, the error denied relief upon based the when no oppor the defendant has further first fifth I factors. Because believe tunity to or present formulate a defense satisfied, that all I State, five factors have been contrary evidence. See Vinson v. S.W/338, (1918) would order a new trial. 140 Tenn. by (“The likely to require Arguments is counsel are entitled any proof advocacy, so as statements of before he introduces viewed whereas proof the evidence by is jury that he can meet instruction a definitive and bind- (emphasis (citation omitted)). upon relies.” [S]tate statement law.” Kassebeer, 118 added)); see also State closing my argument, Because assess- (2008) (hold 493, 193P.3d Hawai’i ment, cannot cure an inaccurate election or not be error could ing that an election instruction, jury a deficient the Defen- closing argument “because the by cured dant’s failure include a verbatim tran- act specific prosecution’s election preclude finding script should must or before the close place take plain error. case-in-chief, thereby rendering insuf its during closing attempt ficient its do so B. Substantial Justice omitted)). (citation arguments” concept jury of a unanimous verdict Moreover, majority acknowl- as the justice sys- to our is so essential criminal Ap- edges, of the Court of Criminal each an tem that consideration of election error peals involved the State’s fail- cáses cited where, here, necessary is as inaccurate This ure an election. case to make in a risk of election results significant an elec- because State made different Kendrick, non-unanimous verdict. .See proof, match and the tion that did not at 570. gave trial court instruction significant One reason there was inaccurate election. reflected the State’s risk of a verdict is that non-unanimous its Even if State clarified April 2005 incident elected" closing argu- focusing on fellatio its offenses, proof of two sex involved distinct ment, unanimously hold that the supported either which could for the upon relied fellatio the basis charge the indictment. The single vic- require presume us to conviction would accompanied tim testified that when she disregarded trial court’s hospital the Defendant *15 home only consider [the] instruction “to alleged 2005, April perform he forced her cunnilingus].” rationale is act This [of fellatio, thereby committing rape of contrary presump- to the well-established 13-15-522(a). child, § see Tenn.Code Ann. that follows all instructions tion addition, “took all See, Defendant e.g., given by the trial court. State . Robinson, 469, clothes off’ and “touched ... victim’s] 494 146 S.W.3d area,” 2004); also'Kassebeer, including private vagi- “[her] at 425- [her] see 193 P.3d (“[J]ust Touching the na.” victim in this arguments 26 cannot manner as counsel evidence, qualified may they arguably rape too as the substitute for so also 2 child, at very id. cure instructions.... least amounted defects Defendant, off, penetration, taking after 2. has held that which all her clothes This Court child, area,” "private including her her does not touched va- an element require vagina gina. (finding be See id. evidence entered that sufficient "that the hymen ruptured; entering testimony of the vulva based on the victim’s Bowles, "pressed penis 52 that defendant had his or labia is sufficient.” State v. the. (Tenn.2001) hand”); 69, against (quoting Hart v. her vulva with State S.W.3d 74 his 901, Troxell, E2012-00233-CCA-R3-CD, State, (Tenn.2000)). 21 No. 2012 S.W.3d 905 3642821, Moreover, 27, Aug. (Tenn.Crim.App. at *3 the Court of WL both this 2012) (finding pen- upheld rape convic- evidence of Criminal have sufficient analogous upon testimony testimony based on the etration victim’s "that tions based placed fingers vagina testimony instance that on victim’s 432 aggravated battery, sexual Tenn. upon majority,
to an
cases relied
13-13-504(a).
§
specifically distinguished
Ann.
Because the Court
Code
between
testimony about
April
multiple non-penetrative
victim’s
2005
acts of sexual
two distinct acts of
touching,
includes
sexual
“may comprise
incident
in-
one
misconduct,
contact,”
support
of which could
“multiple
either
stance
offense,
way
is no
single charged
penetration,”
there
acts of
which “constitute[ ]
jurors unanimously
to be sure
discrete offenses.” 53
at
S.W.3d
634.
based on
same act.
convicted
century,
For over a
Tennessee law has
attempts
majority
to refute this
been clear
when an incident involves
point by citing several cases which this
proof multiple
acts
sepa-
that constitute
offenses,
jurors
do not
here,
Court has observed
rate
as is the case
supporting
par-
the facts
agree upon
must elect which act it
to prosecute.
seeks
they
Kendrick,
long
ticular element so
as
consider See
(granting
may presume that jury’s general (Tenn.1994); Clabo, ver- n. State v. unanimous.”). dict What makes this S.W.2d 205 (Tenn.Crim.App.1995) case different is that the (granting 2005 inci- plain error relief because the *16 dent involved two distinct proof sex acts that “two separate established acts” of qualified separate offenses. See rape during the same incident and the 877, Hogg, (Tenn.2014) 448 S.W.3d 886 two, State failed to elect between the re- (holding “separate incidents of sulting “grave in a constitutional ... penetration” give separate rise to of- in that may have been de- fenses). Indeed, Johnson, in verdict”). one of jury nied a unanimous In this area”); vaginal CCA-R3-CD, 912798, and rubbed her State v. 2001 WL at *2
Brown, M2009-00505-CCA-R3-CD, No. 9, 2001) 2010 Crim.App. Aug. (finding sufficient 4396490, WL (Tenn.Crim.App. *10 Nov. evidence of where the defendant 2010) (finding pen- sufficient evidence of playing’ "admitted [to] victim’s] testimony etration based on the victim’s vagina penis, placing with his but denied "put the defendant had [a] vibrator on her ... penis vagina”). inside the victim’s clitoris”); Crane, State v. No. W2000-01892- factor, satisfied. As to the second significant been instance, created the State when jury verdict that the election undisputed non-unanimous because risk of a distinct the two erroneous, between it failed elect a clear and un- factually April 2005 in the that occurred offenses breached. As to equivocal rule law was incident, prosecute electing instead factor, the third the election error affected occur that incident. act did jury to a the Defendant’s unanimous Brown, See State verdict, undoubtedly qualifies as a (Tenn.1999) trial where (granting a new State, right. substantial See Burlison at trial was deficiency in the election “the (Tenn.1973) (charac- that the by the fact compounded further jury unanimity terizing requirement prosecutor chosen time-frame “immediately touch- as “fundamental” and inaccurate”). simply of an ac- rights the constitutional Moreover, only if there had been even cused”). factor, fourth there was As during the misconduct one act of sexual strategic no basis for the Defendant’s fail- incident, of a non- the risk April 2005 present this issue the trial court. ure be so jury would still unanimous verdict Thus, assessment, my prereq- all of the as warrant error relief. significant relief have uisites been noted, election consisted As the State’s established. (the April day hospital trip of the a date 2005) that did (cunnilingus) act sex III. Conclusion majority concludes not match. While summary, the election error unanimously con- must have jury that the the fundamental constitu- case undermined act that some other sex upon victed based requirement tional unanimous elected, equally it is occur on the date certainty lack of Because of the verdict. of the members plausible some offense, timing of cun- act as to the nature and on the elected convicted based time in a different nilingus contemplate any remedy that occurred other I cannot circumstances frame. Two additional trial. than a new even more non-unanimous verdict make a (1) proof presented the State
probable: victim to subjected the that the Defendant occasions; other cunnilingus on several court, (2) confirming trial after “alleged act” had elected Joseph IN RE: BROWN jury “to “[cjunnilingus,” instructed the alleged deciding Tennessee, act consider [Djefendant has been or not the whether AT MEMPHIS. added.) Given (Emphasis
proven guilty.” February 2015 Session trial proof and the that both the State’s act of focused on the Filed March court’s instructions ma- agree I cannot with the cunnilingus, Rehearing Denied Petition for must jority’s determination *17 based unanimously agreed to convict Appeal for Permission Application upon a sex act. different Supreme Denied August Error 2015. Criteria C. Other Plain remain- briefly I will the three address factors, all of which have
ing plain error notes the defendant physical with the altercation defendant and stated, given among had her which other that the defendant had her threatened things, you you “Do want me—do want me with handgun. T.M. also a informed Ser- sister]; you [your to love younger and or geant Blue “that there was some sexual you do to just you?” want me love and going on that abuse involved her minor I you today?” “Can lick gave daughter.” Sergeant T.M. Blue the defendant’s video camera and the DVD. cross-examination, On the victim admit- Sergeant Blue that T.M. testified then at- that, ted gave when she a statement to the tempted play to the DVD on the home MPD in May she did not mention computer, large but due to a scratch on that the shown defendant had her to how surface, the DVD’s the video was not clear. lick penis, his or that he had licked her Other MPD officers collected and trans- vagina, or the incident that occurred at the ported police precinct as evidence examination, hotel room. On redirect camera, DVDs, the video several and a victim explained that not she had men- book Evil entitled “The That Do: Men tioned in May those details her 2007 MPD Journey FBI Profiler —The Into the Minds interview spe- because she was not asked of Sexual Predators.” Another MPD offi- questions cific and because she scared. cer, Sergeant Manning, Dennis located the The victim acknowledged that she was in approximately defendant two blocks from grade just the fifth and had turned twelve T.M.’s house and him arrested for the by when she was MPD in interviewed aggravated assault of T.M. process- When May emphasized victim 2007. The vehicle, ing Sergeant defendant’s Man- trial, truthfully she had she testified ning a handgun. found nine millimeter ap- confirmed that she had described the day altercation, after this pearance penis T.M. re- of the defendant’s to law store, to turned the camera May and obtained enforcement officers copy another of the DVD from the video interview. cross-examination, Discenza, Ms. Discenza a assault nurse On ad- Sally exactly Rape Crisis Center mitted she did know when with examiner occurred, family practitioner nurse Memphis penetrating injury had but Hospi- likely Children’s Research opined injury with St. Jude she most tal, expert an nurs- “year forensic within past testified occurred or so.” the twelve- ing. fissure, Ms. Discenza examined respect With to the victim’s anal Ms. May victim on 2007. When year-old Ms. Discenza that such conceded fissures history Discenza first obtained develop poor constipa- can due diet and victim, reported the victim T.M. and the examination, however, tion. On redirect “her had touched agreed Ms. Discenza that the victim had breasts, his vagina, with buttocks and reported any problems constipa- with two over the hands at least week time[s] tion, stool, hard or chronic diarrhea but occasions, at- year; on three he last reported attempted pen- that she had anal anus penetrate her with tempted by etration the defendant. Discenza also testified penis.” Ms. evidence, With rested. [the defendant] victim “said that jury charge The trial court discussed the anybody.” kill if she told threatened to counsel, and asked the State make victim, with the Ms. Dis- speaking After relying upon of the facts it physical examination cenza conducted child, charge establish the Although Ms. Discenza found the victim. which is defined as “the unlawful sexual injuries vaginal victim’s no recent of a victim the area, past anal she found indications victim, the victim is areas, including scarring both injuries to (3) years age more than three but less Ex- vaginal and an anal fissure. tissue (13) years age.” than thirteen Tenn. plaining vaginal premen- tissue 39-13-522(a) (2014).4 § Ann. Code injury, girls susceptible strual is more its State announced the follow-