# FILED

August 6, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON DECEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9708-CR-00319 Appellee, ) ) Shelby County V. ) ) Honorable Arth ur T. Bennett , Judge ) ANTONIO M. KENDRICK, ) (Aggravated Rape) ) Appellant. )

DISSENTING OPINION I write separately

to address whether the tr ial court erred by fail ing 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 casein-chief, to elect which proof it relies upon for a conviction where evidence of more than one instance of sexual misc onduct has been presented to the jur y. Jamison v. State , 94 S.W. 675 (Tenn. 1906); Burlison v. State , 501 S.W.2d 801 (Te nn. 1973); State v. Shelton , 851 S.W.2d 134, 13 6 (Tenn. 1993). An election by the state is required under such circumstances regardless of whether the defenda nt makes a demand. Burlison , 501 S.W.2d at 804. T he trial court has a duty to properly instruct the jury so that the v

erdict of each juror is "uni ted on the one offense." Id. at 804. An election serves thr

ee fundamental purposes: First, to enable the defendant to prepare f or and make his defense to the specific charge; second, to protect him from double jeopardy by ind ividualization of the i ssue,2 and third, so that the jury 's verdict may not be

a matter of choice between offenses, some juror s convicting on one offense and others, another. Id. at 803. The failure of the trial court to require an election or to prope rly instruct the jury as to the state's election constitutes pla in 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)(cit ing State v. Ogle , 666 S.W.2d 58, 60 (Tenn. 1984)). In Clabo , this court found plain error becaus e the trial court failed to r equest an election of proof regarding the rape of a chi ld victim. Judge Peay, writing for this court, reasoned as follows: The State provided proof that the defendant performed

oral and anal sex on the v ictim. These are two separ ate acts, each constituting pe netration under the charge of aggravated rape. Y

et, the defendant was only cha rged with one count of aggrav ated rape. The court presented to the jury the proof and all egations of two acts and asked the jury if the defendant coul d be convicted of one count of this act. Theref ore, som e jurors co uld have concluded that the defendant was g uilty based upon the proof of the ora l sex and no t the anal sex, and some jurors could have concluded that the defendant was guilty based upon the pro of of the anal sex and not the oral sex. T he defe ndant ma y have been convicted by a jury of less than twel

ve (12). Since all t

welve (12) members did not have to find the same facts or draw the same conclusions, we find tha t a grave constituti onal error was co mmitted in that th e defen dant may h ave been denied a unanimous jury v erdict. Clabo , 905 S.W.2d at 205.

The facts here are similar. Ther e was a single count i ndictment for aggravated rape. The v ictim testified that the defendant w as armed with a weapon and forced her to perform fellatio on hi m for five to ten minutes. As he dr ove to a second location, he demanded that she con tinue 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 pene tration. Each act spanned several minutes and i nvolved different areas of the v ictim's body and3 differing physical positions. Each occurred at a di fferent location. Although unclea r as to the amount of time that elapsed betw een the two incidents, the r ecord does demonstrate that the defendant talked and ar gued with the victim during that time. He threatened her, insisted that she prove that she w as menstruating, and placed a condom on his penis. Before penetrating the victim, the def endant stated, "[T]his is to make up for what you did t o me ...." See State v. Phillips , 924 S.W.2d 662, 665 (Tenn. 1996).

In Phillips , our supreme court observ ed that "[e]ach act ... is capabl e of producing its own attendant fear, humiliation, pain, and da mage to the victim. Each type of penetration requir es a purposeful act on the part of the per petrator." 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 pene tration included both fellatio and sexual intercourse b ut did not provide an augment ed unanimity instruction . It neither required the stat e to elect nor instructed the jury to determine w hich act of penetration could be considere d for a conviction. As i n Clabo , it is impossible to determine which sexual act the jurors may have relied upon in reaching their verdicts. "[E]ach jur

or was left to choose independe ntly the act(s) of abuse upon which to base a verdi ct." Walton , 958 S.W.2d 727-28.

I should point out that the clos ing 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 closi ng argument may "effectivel y" serve as an electi on. State v. William Dearry , No. 03C01-9612-CC-00462, slip op. at 25 (Tenn. Crim. A pp., at Knoxville, Feb. 6, 1 998), app. denied , (Tenn., Jan. 19, 1999). While that holding4 might support the view

of the majority in that the defendant has failed to provide an adequate record for the disposi tion of the issue, I do not believ e 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. Her e, the instructions incl uded no mention of any election by th e state, formal or otherwi se. 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. Wad e, Presiding Judge