### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs February 6 , 2001
STATE OF TENNESSEE v. SYLVESTE R FORD
Direct Appeal from the Circuit Court for C hester County No. 99-31 Roy Morgan, Jr., Judge

No. W2000-01175-CCA-R3-CD - Filed April 17, 2002

The defendant, Sylvester Ford, was tried by jury and found guilty of one

count of rape of a

child and

one count of aggravate d sexual battery. The trial court sentenced

the defendant to serve twenty years as a Range I

offender. The defendant filed a timely motion for new trial, which the trial court denied. The defendant now brings this appeal, alleging that he should receive a new trial because thetrial court committed plain error

by failing to r

equire the state to elect which acts the jury should consider to support the defendant’s indicted offenses. The def endant subsequently filed a writ of error coram nobis , and the trial court denied the defendant’s petition, finding tha t the petition was untimely filed and did n ot all ege information that would warrant a new trial. After re viewing the record, we find that the defendant’s direct appeal claim has mer it and warrants a new trial, and, therefore, we need not addre ss the mer

its of the d

efenda nt’s coram no

bis petition. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t is Reve rsed and Remanded.

J ERRY L. S MITH , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J OE G. R ILEY , JJ., joined.

C. Michael Robbins, Memphis, Tennessee, on appeal; George M. Googe, District Public Def ender; and Stephen P. Spracher, Assistant Public Defender, Jackson, Tennessee, at trial andon appeal, for appellant, Sylvester Ford.

Paul G. Summe

rs, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney Genera l; Jerry Woodall, District

Attorney Genera l; and Jody

S. Pickens, Assistant District Attorney General, for appellee, State of Tennessee.1 Th e victim had just turn ed se ven year s old a t the tim e of tria l.
-2- OPINION

Facts

The defendant is the father of the the n six-y ear-ol d victim. 1 On June 3, 1999, the defendant returned home fro m work, sh owered , and cha nged in to a robe , as was h

is cus tom. The victim’s mother had just bathed her, and she was dressed in a tee- shirt and her karate robe. Th e vi ctim’s mother went into another room to breast-feed her y ounges t chil d, leaving the defendant and the victim alone in a room together. When the victim’s mother returned to the room, s he fou nd the defenda nt, who was completely na ked, with the vi ctim, who was sitting on the defendant’s lap, facing him. The vi ctim’s shi rt was ab ove her w aist, and the defe ndant wa s rubbing

his penis a

gainst the victim’s vagina. At trial, b oth the victim and her m

other recounted t

his incide

nt in their te st im on y. The victim also testified about two additional instances of sexual abuse that occurred on nights other than the night referred to in the indictment. On one of these occasions the d ef

endant forced the victim

to suck “on it,” while on another occasion the defendant licked her “body part.” The defenda

nt was indi cte d fo r one count of rape of a child and one c ount of aggravated sexual battery. The indictment states that both instances occurred on or about June 3, 1999. Pretrial, defense counsel moved to excludeall ref erences to any

other alleged victims or instances of sexual abuse other thanthose included in the indictment. The trial court ruled that such refere nces should be excluded. Because the trial court later allowed the victim to testify about other instances of sexual abu se in addition to those that occurred on the date named in the indictment, the defendant brings this appeal, alleging that the tri al court ’s f ailure to require the state to elect a

mong the se offenses constituted plain error. We must agree that the trial court did commit such error; therefore,
we rema nd this ca se for a

new tria l. As noted supra , the defendant has also brought a petition for writ of e rror coram no bis , seeking a new trial on the basis of newly discove red information. Pursuant to State v. Mixon , 983 S.W.2d 661, 663 (Tenn. 1999), this Court stayed the de fendant’s direct appeal until the resolution of the defe ndant’s p etition. In his petition, t he defe ndant inc luded the

statemen t of Ms. De

nise Carroll, who stated that the victim admitted that she had fabricated the allegations of sexual abuse and that she had done so at her mother’s instruction. Ms. Carroll also stated that the victim’s mother admitted that the defendant had ne ver sexual ly abused Amanda . The trial court denied the defendan t’s petit ion because it was untimely f iled and because it also failed to allege a basis for granting a new tri al, as the petition a sserted

impeach ment evid

ence as opposed t o a witnes s recantation. The defendant also appeals the t rial court’s denial of this petition. Therefore, the defendant’s direct appeal and the appeal o f his coram

nobis petition a

re now bo th befor

e this Cour

t. However, in Mixon , our supreme court stated:
[W]hen a convicted defendant files a petition for writ of er ror coram nobis in the trial court, he or she mus t simultane ously file a mot

ion in the appellate court

to stay the appeal as of right until conclusion of the coram no bis proceeding in the trial cou r t. The motion to sta

y w ill gene

rally be gra nted by the appe llate court. If, as in this case,-3-

an appeal is taken from the trial court’s denial of the petition for wr it of error coram nobis , it will be consolidated with the appeal as of right. Because coram nobis is an extraordinary

remedy to which r

esort should be had only if no o ther re medy is available, upon review, the a ppellate court mus tfirst address the issues raised in the defendant’s appeal as of r igh t. If none of those issue s are me ritoriousthe appe

llate court mus t then add

ress the issues ra ised in the

defenda nt's coram no

bis appeal.

Mixon , 983 S.W.2d at 663. Implicit in the abov e qu ote is the notion that if the direct appeal has merit and a new trial is warranted on that basis, the corum nobis procee ding is mo

re or le ss moot. Ac co rd in gl y, we first will address the defendant’s direct appe al. Becaus e we find t hat the defendant’s direct a

ppeal iss ue is meri

torious a nd warr ants a new trial, we need not address the denial of the defendant’s petition for writ of error coram no bis

.

Election of Offenses

Our supreme court ha s recen

tly o utlined bo th the histo

ry and the ne

cessit y of t he election require ment: This Court has c onsistentl y he ld that the prosecution must elect the facts upon which it is relying to e stablish the charged offense if evidence is introduced at trial indicating that the defenda

nt has com

mitted multi

ple offe nses ag ainst the v

ictim. Se e Statev. Kendrick , 38 S.W.3d 566, 568 (Tenn. 2001); State v. Brown , 992 S.W.2d 389, 3 91 (Tenn . 1999); State v. Walton , 958 S.W.2d 724, 727 (Tenn. 1997); Tidwell v. State , 922 S.W.2d 497, 500 (Tenn. 1996); State v. Shelton , 8 51 S.W.2d 134,137 (Tenn. 1993). The election requirement safeguards the defendant's state constitutional right to a unanimous jury verdict by ensur

ing that jurors deliberate and render a verdict based on the same evidence. Brown , 992 S.W.2d at 391.

The election requirement was first adopted in Jamison v. Sta te , 117 Tenn. 58, 94 S.W. 675 (1906). This Court in Jamison held that proof of all sexua

l acts all egedly committed by

the defe ndant ag ainst the v

ictim could be a

dmitted int

o evidenc e, but to a

void the prosecution of uncharged sex crimes, the State was required to elect the specific act upon which it was relying

to obtain a guilty ver

dict. Jamison , 94 S.W. at 676. Since Jamison , the election re quireme nt has been applied almost exclusively in the sex crimes context, and sp ec if ic al ly, when the defendant is alleged to have committed a series of sexual acts over a lengthy period of time against y oung children who are unable to identify the exact date on which any one a

ct was perpetrated. See , e.g. , Brown , 992 S.W.2d at 389 (finding that the trial court erred in failing to require an election when the def endant was charged with rape of a child in a one count indictment that covered a six-month time frame, but the proof showed that at least ten instances of digital penetration occurred during the six months alleged, five occurring on one day a

nd five othe

rs on diff erent da ys) ; Walton , 958 S.W.2d at 724 (finding
an election should have been required where sexual off

enses we re char ged in a multi-cou

nt,-4-

open-ended

indictment and where the child victim testified she was raped by the defendant
or that he performed cunnilingus on her on a daily basis for ove

r a y ear); State v. Burlison , 501 S.W.2d 801, 804 (Tenn. 1973) (finding an election should have been required where the defendant wa s c ha rg ed wi th ha vi ng “c ar na l k no wl ed ge ” o f t he vi ct im on “d iv er s d ays betweenthe summer

of 1964 a

nd Augu st, 1969,”but the pr oof did notshow any par

ticular date).

In 1994, this Court overruled Jamison to the exten t it had est

ablish ed a “sex crimes exception” that

p ermitted proof of all sexual acts allegedly committed by the defenda nt against the victim, whether charg ed or uncharged. See State v. Rickman , 876 S.W.2d 824, 829 (Tenn. 1994) (overr ulin g Jamison ). Nonetheless, we recognized in Rickman that out of necessity indictments often charge gene ral time frames that encompass severa l m ont hs. In those instances, we concluded that the State may introduce evidence of sex crimes allege dly committed against the victim during the time frame cha rged in the indictment, but, at the close of the pr oof, the St

ate must elect the facts upon which it is rely ing for conviction. Id.

State v. Johnson , 53 S.W.3d 628, 631 (Tenn. 2001).

In the instantcase, t he tri al cou rt, in contr avent ion o f its rulin g in limine , allowed the state to introduce evidence of two other instances of sexual abuse tha t occurred o n d ates other than the date named in the indictment. The indictment charged that “on or a boutJune 3, 1999” the defendant committed two crime s again st the vict im, rape of a

child and aggravated se

xual battery. According to the vic tim and h er mother’s testimony, on June 3, 1999, the victim’s mother surprised the defendant while he had his daughter on his lap and was touching hi s erect penis to her vagina, making thrusting gestures as if attempting to “hav[e] sexual intercourse” with her. The victim als o testified regarding

two other instances of sexual abuse by the defe ndant occ urring on diffe rent dat es, one in which th

e defendant “lic

ked her b ody

part” a nd anothe r in which

the defe ndant m ade th e victim “suck on it.” Tennessee Code Annotated section39-13

- 522(a) defines therape of a child as “the unlawful penetration of a victim by the def endant or the defend ant by a victim, if such victim is less than thirteen (13) years of

age.” Tenn. Code Ann. § 39-13

- 522(a). The defendant must act with “inte

nt, knowledge, or recklessness.” Tenn. Code Ann. § 39-11-301(c). Sexual penetration includes “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body

or of any object in to the ge nital or a nal openings of th

e victim’ s, the def

endant’ s, or any other pe

rson’s body, but emission of semen is not required.” Tenn. Code Ann. § 39-13-501(7). A rational jury could ha

ve foun d t hat eithe

r of the tw o instanc es of sexua l abuse th at the vic tim reported occurring on

nights other then June 3, 1999 was rape of a child, as the defendant forced the victim to engage in cunnilingus and f ellatio. Furthermore, a jury could have also found that the event occurring on June 3, 1999 was rape of a child if thejurors believed that the defendant’s touching of his penis to the victim’s vagina and accompany ing thrusting motion resulted in an intrusion into the vi ct im ’s bo dy.2 Furthermore, as aggr avate d sexualbatt ery i s a l esse r-i ncluded offens e of r ape of a child , see Stat e v. Joey L. Sal cido , No. M1999-00501-CCA-R3-CD, 2001 WL 2 27357 at *7 (Tenn. Crim. App. at Nas hvil le, Mar. 8, 2001) (fi nding specif

ica l ly that “ [a]ggr avate d sexualbatt ery i s, ther efore , a l esse r-i ncluded offens e of r ape of a chil d”), the jury concei vably c ould have found t hat t he ei ther of t he othe r two i nsta nces of sexualabuse wer e aggr a vated sexual batt ery, rather than rape of a c hild. Accordingly, we cannot det ermine which of the t hree inst ances the j ury reli ed upon when finding t

he defendant guil ty of aggravat ed sexual batter y. Therefore, we mu st r emand this case f or a new tria l on both count s of t

he indi ctment, rape of

a chi ld and a ggravat ed sexua l bat ter y.

-5- To obtain a conviction of aggrava ted sexual battery, the state is required to prove the following essential elements bey ond a reasonable doubt: (1) “unlawful sexual contact witha victim by the defendant or the defendant by a victim,” Tenn. Code Ann. § 39-13-504(a); (2) “[t]he vict im is less than thirteen (13) y ears of age,” Tenn. Code Ann. § 39-13-504(a)(4); and (3) the defendant acted either in tenti onally, k

nowingly, or r

ecklessly, Tenn. Code

Ann. § 39-11-301(c). “‘Sexual contact ’ in cl ud es th e i nt en ti on al to uc hi ng of th e v ic ti m’ s, th e d ef

en da nt ’s , o r a ny other p erson’s intimate parts, or the intentional touching of the clothing covering the immediate area of the v ictim’s, the defendant’s, or any

other person’s intimate parts, if that intentional touching can

be reas onably construed as being for the purpose of sexual arousal or g ratification.” Tenn. Code Ann. § 39-13

- 501(6). The June 3, 1999 incident described by the victim and her mother could have constituted aggravated

sexual battery if the jury

found that the defendant’s contact with the victim’s vagina wa s merely a touc

hing and not an intrusion. 2 In sum, a jury could have

found that two of

the reported incidents were rape of c hild and that
one incident was either rape of a child or ag gravated sexual battery

. When a jury has hea rd evidence of severa l instance s of criminal condu ct, each of which could support a conviction for the indicted offense s, the trial court has an affirmative duty to require the state to elect which instance(s) the jury should consider during its deliberation. I n an analogous case involving an appeal of a conviction for having carnal knowledge of a fe male child under twelveyearsof age, the Tennessee Supreme Court held “tha t it [is] the duty

of the tri al judge

to requir e the Stat e, at the close of its proo f-in-ch

ief, to elect the part icular o ffense

of carn al knowle dge upo n which it w ould rely for conv iction, a nd to properl y instruct t he jury so that the verdict of every juror would be united on the one offense.” Burlison v. State , 501 S.W.2d 801, 804 (Tenn. 1973). In Burlison , the state introduced several instances of

the defendant’s sexual abuse of the victim, and accordingly the supreme c ourt held that the trial court erred by

failing to require the state to make an election. Id. We find tha t this scenar

io is factually similar to the instant ca se, and accordingly find that the defendant is en titled to a new trial. Moreover, although the defendant did not move for an election at the c lose at the state’s proof-in-chief, Burlison states t h at a defendant’s right to a unanimous jury verdict cannot be prej udicedby his failure to move for an election. Id. at 804. F urthermo re, def ense cou nsel mad e moti ons to exclude evidence and for a mistrial when the state soug ht to introduce evidence o f additional allegations of sexual abuse other than those included in theindictment. Thus, we find that while the defense did not move for an election, through its motions for mistrial and corresponding argume nts, the de

fense br ought thi s issue to th

e attenti on of the p

rosecut ion and the

trial cou rt.-6- Conclusion
For the foregoing reasons, we find that the defendant’s issue on direct appeal warrants a new trial. Accordingly , the judgment of the lower court is REVERSED AND REMANDED for further proceedings consistent with this opinion.

____________________________________ JERRY L. SMITH, JUDGE