It i s t he p o l i cy o f t his C o urt t o i d en t i f

y t he m i no r victi m s o f

sex o f fen ses b y t he i r i nit i als. 1 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT NAS HVILLE Ja nuary 25, 200 5 S es sio n

STA TE OF TEN NES SEE v. WILLIAM DA RR YN BU SBY

Direc t Appeal from the Circ uit Court for Lewi s County No. 6379 Robert

E. Lee Davies, Judge

No. M2004- 00925-CCA -R3-C D - F iled March 29, 2005

The De fenda nt, Wi lliam D. Busby , was c onvicted by a jury of four counts of rape of a child. The trial court subseque ntly

sentenc ed him to four concurr ent t erms of twenty y ear s in the Depa rtment of Cor re c tio n. I n this dir e c t app e a l, the De fe nd a nt co nte nd s th a t th e tr ia l c ou rt c omm itt e d r e ve rs ibl e

err or by failing to instruct the jury about the State’s e lection of offe nses. Finding that the trial court’s

e rr or wa s h arm le ss b e y on d a

re a so na ble do ub t, w e a ff

ir m th e jud g me nts of

the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

D AVI D H. W EL L ES , J
., delivere d the opi nion of the c ourt, in which J ER R Y L. S MI TH and R OB E R T W. W EDEMEYER , J J ., joined.

Robert D. Masse y

(at trial) , Pulaski, T en n es s ee and L loy d R. Tatum (on appe al), He nderson, T e n n e s s e e , f

o r t h e ap p e l l a n t , W i l l i a mD arr yn B u b s y.

Pa ul G

. S u m m e r s , At torne y Ge ne ra l a ndRe po rt e r; El iza be th B . M arn e y , A ssi sta nt A tto rn e y Ge ne ra l; Ron a ld L . D a vis , D ist

ri c t A tto rn e y

Ge ne ra l; a ndJef

fr e y L . L on g , A ssi sta nt D ist

ri c t A tt o rn e y G e n e r a l, for the a ppellee, State of

Tenne ssee.

OP IN ION

F AC TS

Th e vic tim

in this c a se , C. T.
, wa s te n y e ars olda t th e tim e he te sti fi e d. He e xpla ine d th a t, 1 du ri ng the tim e s in qu e sti on , h e wa s li vin g wi th h is m oth e r, his ba by bro th er, and th e De fe nd a nt. The De fenda nt was his mother’s boy friend.-2-

Th e vic tim

te sti fi e d th a t th e fi rs t ti me the De fe nd a nt t ou c he d h im i n a “ ba d” way , he c a me out of his bedroom in the m orning and found the Defe ndant in the room next door, on the computer. The Def endant showed the victim some pictures of na ked women on the computer. The Def endant then aske d the victim if he “w anted to know how se x was” ; the victim replied, “no.” The De fenda nt pushed the victim into the victim’s bedroom, laid him on the bed, pulled the vic tim’s underwe ar down, and licke d the victim’s penis. The victim stated that he tried to pull his underwea r up, but the De fe nd a nt h e ld the m dow n. Th e De fe nd a nt t oldC.T . th a t if he tol d a ny on e , th e De fe nd a nt w ou ld be a t hi m. T he vic tim

te sti fi e d th a t hi s mo the r w a s a sle e p d uring thi s in c ide nt.

C.T. testified that the Def endant had sexual c ontact with him a second time, stating “he put my thi ng in h is m ou th, I thi nk that’ s wh a t ha pp e ne d the se c on d tim e .” Th e vic tim state d a sh ort ti me later, “ he mig ht’ve made me put my mouth on his

. . . I ’m not that sur e.” The victim said that the Def endant a ccomplished this by forc ing him “w ith words.”

On a third oc casion, C.T. and the Def endant we re w atching a movie tog ether on the couc h in the liv ing ro om. Th e vic tim state d, “ He tol d me to p ut my mou th on his thi ng a nd he pu sh e d my head dow n like that rig ht there .” The victim testified that “he made me put my mouth on his t hing ag ain until that stuff came out, and then when it c ame out, I spit it in the floor and the n he told me, ‘When y ou g et out of the ba throom spitti ng it in the commode, to c lean it up off the floor.’” C.T. said he thoug ht the color of the “stuff” was white.

On another occa sion, the victim testified, the Def endant was y elling at som eo n e o n t he cellphone a nd the victim woke up. The Def endant then g ot of

f the cell phone and ag ain made C.T. put his mout h on the Def endant’ s penis. The victim thoug ht this i ncident o cc u rr ed in the living

room.

On a

fi fth o c c a sio n, the vic tim te sti fi e d, the De fe nd a nt ha d some c le ar l oti on in a tub e wi th

a sc re w- on top

. Th e De fe nd a nt squ irte d some of thi s lo tio n “ up ” the vic tim ’s “ bo tto m” a nd“ pu t hi s thing in [the victim’s] bottom for about five minutes.” T his occurr ed while the vic tim was bent over his mother’s bed with the De fenda nt standing behind him. After the D efe ndant put his penis in the victim, the Defe ndant “moved ba ck and f orth.” The victim’s mother was at work at the time. Af te rw ard , th e vic tim

te sti fi e d, he “ ha d to g o c le a n the lot ion of [sic ] my bo tto m a nd[he ] ha d to us e the bathroom.”

The victim did not tell any one about these incidents until after his mother a nd the Def endant had a big fig ht. He told his mother then “[b]ecause [he] knew [the De fe ndant] was g one.” T he victim had not told his mother bef ore be cause the Def

endant ha d threa tened to beat him.

C.T. stated that he wa s in the second g rade when these incidents occ urre d.

C.T.’s mother, Ginette Tow nsend, testified that the D efe ndant moved in w ith he r and C.T. in A pr i l o f 2 0 0 1 w h i l e s h e w a s p r e g n a n t

. T h e D e f e n d a n t l e f

t t h e r e s i d e n c e i n Ju l y 2 0 0 2 . M s. Townsend state d that the Def endant wa s home alone w ith C.T. on Sunday s while she wor ked. She-3-

told the Def

endant to leave afte r t hey had a fig ht and he “slung ” her and cusse d her in fr ont of C.T. The ne x t day , she testified, C.T. told her what the Def endant ha d done to him.

Ms. Townsend stated tha t during a phone call s he subsequently had with the De fenda nt, he ad mitted to C .T.’s alleg ations. On a late r date , Ms. Townsend ag ain ca lled the Def endant a nd

rec orded the phone call. I n spite of her eff orts, the Defenda nt did not confess to the a lleg ed crimes du ri ng thi s p ho ne c a ll.

Ms. Townsend ac knowledg ed that C.T. had be en asse ssed by school personne l as being emotionally

disturbed. She also explained that C.T. was re peating the sec ond g rade when the Def endant’ s crimes we re a lleg edly committed.

J ulie Eliz abeth Rosof-Williams testified that she is a nurse pr actitioner wi t h Our Kids, an outpatient clinic af

filiated with Metro Genera l Hospital in Nashville. She examined C.T. following his alleg ations. During the victim’s visit, he stated that his mouth and bottom should be examined for g erms. Ms. Rosof-Willi ams examined C.T.’s ge nital are a, his penis and his “bottom,” a nd determined that they

wer e all “norma l.” On dire ct exam, she stated that “[i]t is entirely possible that thi s c hil d ha s be e n a na lly pe ne tr a te d, or a lly pe ne tr a te d, wi tho ut a ny so rt of me dic a l e vid e nc e , s o th is

e xam i s c on sis te nt w ith the his tory of pen e tr a tio n. ” On c ro ss- e xami natio n, sh e a dmi tte d th a t,

“ [b]a se d on the ph y sic a l e xam f ind ing s a lon e , I

c a nn ot t e ll y ou wh e the r this c hil d h a s b e e n s e xua lly abused or not.”

After this testim ony , the State re sted its case. A t that point, the trial court excused the jury from the c ourtroom and then a sked the State to make its electi o n o f o ffenses. The pr osecuting

a tto rn e y re sp on de d a s f

oll ow s: Ple a se the Cou rt , o n Coun t 1 of thepr e se ntm e nt, the e le c tio n w ou ld b e dirty pic tur e s o n th e c omp ute r with [the De fe nd a nt] l ic kin g [C.T .’ s] private pa rt s, his pe nis

are a.

. . . Number two, [C.T.] having [t he Defenda nt’s] penis in his mouth by“for cing with words.”

. . . Nu mbe r thr e e , [C. T. ] ha vin g [the De fe nd a nt’ s] pen is in his mou th an d w hit e stu ff c a me ou t.

. . . Number f

our, I would ter m t h e ce ll phone incident, [the Defe ndant] on the cell phone, and immediately afte r had [C.T.] put his penis in his mouth.

. . . Nu mbe r f

ive , th e lot ion inc id ent wh e re [the De fe nd a nt] p ut h is p e nis in [C .T.’s] buttock.

Following this it emization, defense c ounsel made a motion for acquittal on all five counts. After hearing a rg ument, the trial court dismi ssed Count 2. That count cha rg ed, in pertinent part, that the-4-

De fe nd a nt “ be tw e e n July , 2 00 1, a ndF e br ua ry , 2 00 2,

. . . un la wf

ull y , int e nti on a lly a ndfe lon iou sly didse xua lly pe ne tr a te the vic tim
, a MA LE le ss than thi rt e e n (1 3) y e ars of a g e , wh os e date of birth is 1 1/1 1/9 2, in v iol a tio n o f T e nn e sse e Cod e An no ta te d 3 9- 13 -5 22 .” Th e la ng ua g e of Cou nt 2 is ide nti c a l to the la ng ua g e of Cou nt 1. I t is a lso ide nti c a l to the la ng ua g e of the re ma ini ng c ou nts , w ith the exception that Counts 3, 4 and 5 eac h ref ere nce the time period “be tween F ebrua ry , 2002, and J uly , 2002.”

Following this jury -out discussion, the jury returne d to the courtroom. The trial court did not inform the jury that it ha d dismiss ed Count 2 of the indictment. The trial court did not inform the jury about the State’s e lection of offe nses. I nstead, the Def endant immediately commence d his case. Th e De fe nd a nt t e sti fi e d a ndste a df a stl y de nie d th e a lle g a tio ns le vie d a g a ins t hi m by C.T

. He a lso denied having “slung ” Ms. T ownsend. He denied that he had eve r admitted to Ms. Townsend that he molested C.T. During cross-examination, he admitt ed to having some pornog raphic photogr aphs on his computer at home.

F oll ow ing the c los e of

the De fe nd a nt’ s c a se , the la wy e rs ma de the ir c los ing arg ume nts to t h e j u ry

. I n p er t i n en tp ar t , t h e p ro s ec u t i n g at t o rn eyt o l d t h e j u ryt h e f o l l o wi n g:

We’re ta lking a

bout four separate instances, is what we’re talking a bout, four separ ate instanc es that y ou are to consider in this case . And I ’ve sort of labele d them jus t so I c a n dis tin g uis h the m on e fr om the oth e r a nd
, ho pe fu lly
, he lp y ou a lit tle bit

. And the judg e, I

think, will probably help y ou with that, a lso. One of them I call the “dirty pictures on the c omputer” incident. And if y ou’ll reme mber on that one , [t he Def endant], acc ording to [C .T.], was looki ng at di rty pictures on the c omputer and

wa nte d to sh ow him so me of the m, andthe n a sk e d h im a bo ut d id h e kn ow ho w t o ha ve se x. So tha t’ s th e on e that se ts that in c ide nt a pa rt fr om the oth e rs

. And at that time, afte r t hey g et t hroug h with the computer, a s [C .T.] said, and

corr oborate d by

[t he De fenda nt] and [ Ms. Townsend] and som e of the rest, they leave the room whe re the computer is, g o one room ove r t o [C .T.’s] bedroom and [the Def endant] licks--at that point pulls his underwea r down, won’ t let [C .T.] lift it back up, he tries to lift it back up and he won’t let him, and at that point [C .T.] say s that [the De fe nd a nt] l ic ke d h is p ri vate pa rt a t th a t po int

. The next i ncident is the one I ’m g oing to c all “stuff c ame out,” and that was pretty g raphic in detail. I f y ou’ll remembe r, [C.T.] was talking about that he had [the D e f e n d a n t ’ s ] p e n i s i n h i s m o u t h a n d s o m e th i n g c a m e o u t a n d h e s p i t i t , a c c i d e n t a l l y, part of it on the f

loor and then later went to the commode and spi t the re st out. He had to come ba ck af

ter that, of cou rse, a nd clea n it up out of the floor whe re [the Def endant] told him to c lean it up. He did de scribe it as w hite, he did desc ribe the materia l as white. Th e ne xt inc ide nt, wh a t I ’m g oin g to c a ll the “ c e ll p ho ne inc ide nt. ” I f y ou ’l l

reme mber, [C.T.] was talking about [the Defe ndant] being on the cell phone. A nd I think the thing that st uck out i n my mind, and I

don’t know, re ally , whether it had any signific ance or not, but he said that he was rea l loud on the telephone talking on-5-

the ce ll phone, so that stuck out in [ C.T.’s] m ind that h e wa s l o u der tha n normal talking on that cell phone. And shortly afte r that, he had-- [t he Def endant] had [C.T.] to p ut h is p e nis in [C. T. ’s ] mou th o n th a t in c ide nt. And then the last one i s t h e “lotion i ncident.” I f y ou will remember what [C .T.] said was, is tha t [the Def endant] took lotion and squirted it in the anal ar ea or either up the anal a

rea or something , and then [the Def endant] g ot [ C.T.] to bend over the bed on his stomach, [t he De fenda nt] was be hind him, and he was moving , I believe he said--y ou probably reme mber what he did say , I thought he said moving back a nd forth, is what I thought he said, but y ou probably reme mber that be tter than I do. And the thing that, I g uess, caug ht me on that one, too, is that [C .T.] said he

some way looked around and could see [t he De fenda nt’s] part or something be hind him , b e c a us e I thi nk I a sk e d him, “ Di d it g o u p in y ou ? ” An d h e sa id, “ Ye s, ” a t f ir st,

a nd“ it h urt.” B ut h e did n’ t kn ow ho w f ar i t w e nt u p in him be c a us e he wa s a ble to loo k a ro un d a ndse e pa

rt of his pa rt wh e n h e loo ke d a

ro un d b e hin d h im. Ag ain, y ou’ve he ard w hat he sa id about those incidents. Please, look at that and compa

re the m. L ook at that an d co m p ar e t h em to see w hat he sa id at the preliminary

hearing, a lso, rather

than me standing here and re ading it for y ou.
The prose cutor did not tell the jury that Count 2 had been dismissed. Howe ver, de fense counsel stated during his closing a rg ument that “We started out with five ca s es , now there are only four: Count 1, Count 3, Count 4 and then Count 5. Count 2 is gone . . . .”

Following closing a

r g u me nts, the transcript of evidenc e indicate s that the trial court “cha rg ed the jury as to the law applica

ble to the ca se and w ent over the ver dict form . . . .” T here is no ind ic a tio n in the re c or d th a t the tr ia l c ou rt inf orme d the jury abo ut the Sta te ’s e le c tio n o f o ff e ns e s, or t hat t he court had dis missed Count 2. At the beginning of the jury char g e, howe ver, the trial court stated, “The defe ndant, Will iam D. B usby , is charg ed in Counts 1, 3
, 4 and 5 with the off ense of Rape of a Child.” L ater

in the char g e, in the sec tion tit led “Or der of Consideration,” the jury

was ins truc te d to c on sid e r Cou nt 3 a ft e r i t ha d c on c lud e d it s c on sid e ratio n o f C ou nt 1 . T he jury wa s a lso provided with four separ ate verdic t f orms which ref

er respe ctively

to Count 1, C ount 3, Count 4 and Cou nt 5 . T he jury

wa s f urthe r p ro vid e d w ith the ind ic tme nt, a lth ou g h th e re c or d d oe s n ot i nd ic a te

w h e t h e r C o u n t2 o f

t h e i n d i c t m e n tw a s r e m o v e d p r i o r t o i t s b e i n g p r o v i d e d t o t h e j u r y.

As set forth a

bove, the jury co n v i ct ed t h e Defenda nt of rape of a c hild on each of the four

c ou nts su bmi tte d to it.

AN AL YSI S The Def e n d a n t r a is e s o n ly

o n e is s u e in th is ap p e a l. H e c o n te n d s th a t th e tria l c o u rt committed reve rsible error by failing to instruct the jury about the State’s e lection of off enses a nd by fa ili ng to p ro vid e the jury wi th a n a pp ro pria te un a nim ity

ins truc tio n. Th e Sta te dis a g re e s.-6-

Th e do c tr ine of e le c tio n of of fe ns e s is i mpl ic a te d w he n th e Sta te c ha rg e s a de fe nd a nt w ith

one or more sexual off

enses and then a dduces at trial proof of mor e sexual offe nses than have been

c ha rg e d. Un de r tho se c ir c ums ta nc e s ou r su pr e me c ou rt ha s lon g a nd c on sis te ntl y he ld that th e Sta te must select from a mong the various off enses pr oved, those pa

rticular ac t s u p on which it seeks convictions. See State v. Johnson, 53 S .W.3d 628, 630 (Tenn. 2001); State v. Kendrick, 38 S.W.3d 566, 568 (Tenn. 2001) ; St at e v. B rown, 992 S.W.2d 389, 391 (Tenn. 1999); State v. Walton, 958 S.W .2d 724, 727 (Tenn. 1997) ; Tidwell v. State, 92 2 S

. W

. 2 d 4 97, 500-01 (Te nn. 1996); State v. Shelton, 851 S.W .2d 134, 136 -3 7 (Tenn. 1993) ; Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 19 73 ). Th e B ur lis on de c isi onc ite s th re e re a so ns fo r t he e le c tio n r e qu ir e me nt:

F ir st, to e na

ble th e def

e nd a nt t o p re pa

re fo r andmake his de fe ns e to the sp e c if ic char g e; sec ond, to protect him from double je opardy by in d ividualiz ation of the issue,

a ndthi rd , s o th a t the jury ’s ve rd ic t may no t be a m a tte r o f c ho ic e be tw e e n o ff e ns e s, some jurors convic ting on one offe nse and othe rs, another

.

50 1 S. W. 2 d a t 8 0 3

. I t is th e th ir d o f th e s e r e a s o n s th a t a d d r e s s e s th e mo s t s e r io u s c o n c e r n : “the well-e stablished rig ht under our sta te constitution to a unanimous jury verdic t b efore a c riminal conviction is imposed.” Shelton, 851 S.W .2d at 137. This rig ht “requires the trial c ourt to take prec autions to ensure that the jury deliberates over the particula r char g ed offe nse, instead of cr eating a ‘patchwork ve rdict’ ba sed on diffe rent off enses in evide nce.” I d. (empha sis added).

Our supre me court has “stre ssed that the elec tion r equire ment is a responsibility of the trial
court a nd the prosec ution a nd, there fore , does not depe nd on a spec ific re quest by the def endant.” Kendrick, 38 S.W.3d at 569. More emphatica lly , our hig h court in B urlison held that

it [ is] the duty

of the trial judg e to re quire the State, at the close of its proof -in-chie f, to elect the pa

rticular offense of ca

rnal knowle dg e upon which it would re ly for

c on vic tio n, a ndto p ro pe rl y ins truc t th e jury so that the ve rd ic t of e ve ry jur or wo uld be united on the one offe nse.

50 1 S. W.2 d a t 80 4. Th e de fe nd a nt’ s r ig ht to a un a nim ou s ju ry ve rd ic t on e a c h a nde ve ry c ou nt i s “funda mental, i mmediately touching the constitutional rights of an acc used.” I d. As such, any err or committed by

the trial court in failing to re quire the State to e lect the offe nses on which it choose s to seek c onviction, or to proper ly instru ct t he jury

there on, is rever sible unless determined to be harmless be y ond a re asonable doubt. See Shelton at 138.

I n the instant case , the State cha rg ed the Def

endant with five counts of rape of a child. The victim testified on direct e x amination about five d i s tinct occur renc es which, taken as true
, c on sti tut e d f

ive c omm iss ion s o f r ape of a c hil d. Se e Te nn . Code An n. § 39- 13 -5 22 (a ). Th e vic tim
te sti fi e d th a t th e De fe nd a nt ( 1) lic ke d th e vic tim ’s pe nis ; ( 2) fo rc e d th e vict im “wi th wo rd s” to perf orm fellatio; (3) had the vi ctim perf orm fellatio whil e they wer e watching a movi e, during whic h act the D efe ndant ejac ulated; (4) r eq u i red the victim to perform fe llatio after a cellphone

conver sation; and (5) se x ually penetr ated the vic tim’s anal ar ea. Initially , then, the St at e did not-7-

introduce pr oof of more sexual offenses tha n wer e cha rg ed. H o we v er , fo llowing the c lose of the State’s proof, the trial court dismiss ed Count 2. Thus, the jury had five specific events fr om which
to c ho os e in de te rm ini ng wh e the r to c on vic t the De fe nd a nt of fo ur c ou nts

. Th is is the ve ry e vil which an e lection of off

enses is desig ned to avoid.

Although the State did, in f act, e lect its offe nses at the c lose of its proof, it did so outside the prese nce of the j ury

. Moreove r, the trial c ourt neve r informe d the jury of the State’s e lection. Nor did the trial court ever inform the jury that it ha d dismiss ed Count 2. The very crux of the elec tion require ment is to ensure jury unanimity

. The trial court committed e rror when it f ailed to instruct the jury abo ut the Sta te ’s e le c tio n o f o ff e ns e s a ndits ow n d ism iss a l of Cou nt 2 of

the ind ic tme nt.

Ne ve rthe le ss, thi s Co urt ha s p re vio us ly de te rm in ed th a t a

tr ia l c ou rt ’s failu re to p ro pe rl y instruct the jury

about the State’s e lection may be harmless where the prosec utor provides du ring closing arg ument an ef

fec tive substitut e for

the missing instruction. See, e .g ., State v. J ames Arthur Kimbrell, No. M 2 0 0 0 -0 2 9 2 5 -C C A- R 3 -C D, 2 0 0 3 W L 1 8 7 7 0 9 4
, at * 2 3 (T en n . Crim. App., Nashville, April 15, 2003); State v. Michae l J. Mc Cann, No. M2000-2990-CCA-R3-CD, 2001 WL 1246383,

a t *5 (T e nn . Crim. Ap p. , Na sh vil le
, Oc t. 17
, 20 01 ); Sta te v. Willi a m De arry , N o. 03 C01 -9 61 2- CC00462, 1998 WL 47946, at *13 (Te nn. Crim. App., Knox ville, Feb. 6, 1998) . We have c oncluded that the prosec utor provided suc h an ef fec tive substi t u t e during his closing arg ument in this case. As se t f orth a bo ve , he ide nti fi e d ve ry sp e c if ic a lly the fo ur dis tin c t occ ur re nc e s a lle g e d b y

the vic tim

on wh ic h th e Sta te wa s se e kin g c on vic tio ns . T he jur y wa s g ive n o nly fou r cou nt s on wh ic h to deliberate the De fenda nt’s g uilt or innocence

. Def ense counsel informed the jury during his closing arg ument that Count 2 had been dismissed. These aspec ts of the ca se obviated the dang er of a “patc hwork” verdic t. There fore , under a ll of these ci rc umstances, we are convince d bey ond a

rea sonable doubt that the jury convicted the Def endant of four counts of rape of a c hild based on the

e vid e nc e of

the fo ur oc c ur re nc e s sp e c if

ie d b y the Sta te du ri ng c los ing arg ume nt.

Th e De fe nd a nt po int s ou t that the jury ha d be fo re it e vid e nc e of a dd iti on a l se xua l of fe ns e s. During his cross-e x amination of C.T., de fense counsel que stioned the victim about his preliminary hearing te stimony

. Def

ense counsel was using this prior testi mony for impeachment purposes. At the close of

the victim’s testimony , defe nse counsel i n t ro d uced a transcript of the victim’s prelim i n ar y h ea ring testimonyas an e x hibit, and it was admitted into evidence without objection. B oth the pr os e c uto r a nd de fe ns e c ou ns e l r e fe rr e d to thi s d oc ume nt during the ir c los ing arg ume nts

. Th e e xhibi t w a s a va ila

ble to the jury

du ri ng its de lib e ratio ns

. During his preliminary

hea ri ng testimony , the victim testified with specificity about four incidents of molestation: testimonywhich the victim essentially repe ated during trial. At the end of the S tate’s questioning during the pr eliminary hearing, the victim also testified that the Def endant “did them stuff a

few more times.” On pr ompting, the victim stated t his “stuff” was the D efe ndant putting the victim’s “priva tes” in the Def endant’ s mouth. The victim stated this happened “ may be fo ur ” tim e s. Th e vic tim

didno t r e pe a t th e se va g ue a lle g a tio ns du ri ng tr ia l.-8-

We rec o gnize that the jury may have r ead this exhibit during its deliberations and may ther ef o re have disc overe d this proof of uncha rg ed off enses. How ever , the testimony was va g ue, br ie f a ndve ry

g e ne ra l. T his Cou rt

ha s p re vio us ly

re c og nize d th a t, wh e re a c hil d wi tne ss te sti fi e s to

on e ins ta nc e of

se xua l c on ta c t w ith pa

rt ic ula ri ty , b ut a lso make s mi no r re fe re nc e s to oth e r i ns ta nc e s, t h e m i n o r r e f

e r e n c e s ar e h ar m l e s s i n t h e c o n t e xt o f t h e e l e c t i o n r e q u i r e m e n t

. S e e Sta te v. Da rr e ll Do ds on , M 19 98 -0 00 67 -C CA -R 3- CD , 2 00 0 WL 37 83 47 , at *7 (T e nn . Crim. Ap p. , N a sh vil le , A pr il 14 , 2 00 0) . We c on c lud e that t he vi c tim ’s min or re fe re nc e s to oth e r, un c ha rg e d a c ts d uring his preliminary

hearing te stimonywer e likewise ha rmless under the circ umstances of this case.

The De fenda nt also complains that the trial co u rt er red in failing to provide the jury an

e nh a nced un a nim ity

ins truc tio n. Th e De fe nd a nt c or re c tly po int s o ut that th e tr ia l c ou rt me re ly instructed the jury

that, “I n order

to return a ver dict it is necessary that eac h juror ag ree there to. Your verdic t must be unanimous.” Howeve r, our supre me court has opined that, wh ere an e ffe ctive elec tion of offenses has been made, an enhanc ed jury instruction on unanimity is not necessa ry . See John so n, 53 S.W. 2da t 63 5. Th is i ssu e is the re fo re wi tho ut m e ri t.

I n sum, the trial court e rre d in failing to instruct the jury about the State’s e lection of of fe ns e s. W e hav e de te rm ine d, ho we ve r, that th e e rr or wa s h arm le ss b e y on d a

re a so na ble do ub t. Acc ording ly , the Def

endant is not entitled to relief on this iss ue.

We a ff ir m th e jud g me nts of

the tr ia l c ou rt

.

___________________________________

DAVID H. WELLES, J UDGE