# FILED
December 16, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE NOVEMBER 1995 SES SION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9505-CR-00139

) ) Knox County v. ) ) Honorable Ray Lee Jenki ns, Judge ) HOWARD BROWN, ALIAS, ) (Aggravated Rape) DUNKER, ) ) Appellant. ) For the Appellant : For the Appellee : Susan E. Shipley Charles W. Burson 800 Gay Street Attorney General of Tennessee 1610 Plaza Tower and Knoxville, TN 37929 Hunt S. Br own Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Honorable Randall E. Nichols District Attorney General and Charme P. Johnson Greg Harrison Assistant District A

ttorneys General City County Build ing Knoxville, TN 37902

OPINION FILED:__________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N

The defendant, Howard Brown, a lias, Dunker, appeals from hi s conviction in the Knox County Cr

iminal Court for aggra

vated rape, a Class A felony . He was sentenced as a Range I, standar d offender to twenty years to be served in the custod y of the Department of Correction. In this appea l as of right, the defendant contends:

(1) that this case should be remanded f or t he trial court to determine if the indictment charg es an offense, (2) that the trial court erred in excluding admissible evidence of the victim’s sexual relationship with an adolescent male that was offered to rebut medical test imony under Tenn. R. Evid. 412, (3) that the trial court er red in supplementingits instructions to the jury relative t

o the election of offenses afte r the ju ry had begun deliberations, and (4) that th e trial cou rt erred in allowing

the jury t

o resume deliberations after declaring a mistrial, (5) that the trial court er red in refusing the defendant’s request for individual polling

of jurors. We find no reversible error and affirm the conv iction.

The facts in this case invol ve the defendant having sex ual intercourse with his step-daughter, w

ho was less than thirteen years old. The vic tim testified that she was eleven years

old and in the sixth g rade when the defendant began touchi ng and kissing her. She stated that the first conduct occurr ed on a day that the defendant kept her home from school. She said that the defendant took her to her mother’s room where he had

her perform o ral sex an d he performed oral sex o n her. Later that same day, she testified that the defendant ag ain forced her to perform oral sex on him. On another day, she said that th e defendant came to her bedroom, took off her clo thes and placed his penis inside her . She said that he stopped whe n she complained that he was hurting her stomac h. On a third occasion, the defendant took the victim to her mother’s bedroom and began fondling her, ultimately havi ng sexual intercours e with3

her. The victim reported that the incidents occurred early in the school year. The victim testified that she reported the abus e on December 9, 1991, by tell ing her aunt who then told her mother.

Janie Shelton, the victi m’s aunt, testified that the vi ctim told her on December 9, 1991, that the defendant had sex ually abused her. She sai d that she immediately told the vi ctim’s mother. She said that the victim was hy sterical when taken to the hospital. On cr oss-examination, she sai d that the victim’s mother guessed who had abused her daughter.

Nancy Moore, the victim’s sixth grade teacher, testified that the victim missed two days of school in September, five days in October and one day in November. She described the victim as an honest and capable studen t, but she said that she noticed a change in t he victim’s attitude after her October absences.
Robert Kelly Dicks

on, an emergency room pediatr ician with the Univ

ersity of Tennessee Hospital, testified that h e examined the victim on December 9, 1991. He said that the victim could not tell him how many times the abuse had occurred. He said that the victim told him t hat nothing had happened in the las t month leading up to her report. He noted one larg e healed tear of the victim’s hymen that had occurred sev eral weeks prior to the ex

amination. He stated that the v ictim’s condition was

consistent with forced vaginal

penetration and consistent w ith the history giv

en by the victim.
The defendant presented the te stimony of one of the victim’s friends, Elesha Gibson, who testi fied that the victim and she had skipped school together on one occasion. She also said t hat the victim complained to her that the defendant was too strict.4 The defendant testified that he was tw enty years old w

hen he met the victim’s mother. He s

aid that they married in October 1990 and began liv ing in the Bakertown Apartments w here he was a maintenance man. H e said that he had disciplined the vict im after catching her with an older boy in the fall of 1991. He denied that any abuse occurred. O n cross-examination, he a dmitted that he and the victi m had been alone in the apartment sever al times.

I The defendant has filed a motion with thi s court asking that w e remand the case to the trial court for the determination of the sufficiency of the indictment in light of this court’s hol ding in State v. Roger Dale Hill, Sr. , No. 01C01-9508-CC-00267, Wayne County (Tenn. Crim. App. June 20, 1996) , dealing with the mens rea element of the offense not being specified in the allegatio ns. However, our supreme court reversed this court i n Hill and concluded that an allegation that the defe ndant unlawfully sexually penetrated the victim would suffice. State v. Roger Dale Hill, Sr. , No. 01-S-01- 9701-CC-00005, Wayne County (Tenn . Nov. 3, 1997) (for publication).

In any event, the indict ment in the present case alleg es that the defendant “unlawfully and feloniously did sexually penetr ate” the victim. (Emphas is added). The Tennessee Supreme Court has prev iously held that the term “feloniously” means “w ith a deliberate intent to commit a w rongful act” and, thus, incl udes intentional acts. State v. Smith , 119 Tenn. 521, 526, 105 S.W. 68, 70 (1907). Under pre sent law, the element of recklessness, that is r equired for aggrav

ated rape, is also establis hed if a person acts intentionally or know

ingly. See T.C.A. § 39-11-30 1(a)(2). T hus, the term “fe loniousl y” as alleged in the indict ment actually specifies the mens rea necessary for aggr avated rape. The indictment is sufficient.5 II The defendant contends that the trial court erred by excluding admissible evidence of the victim’s sexual relationship w

ith an adolescent male that w as offered by the defendant to rebut medical testimony under Rule 412, Tenn. R. Evi d. The state argued that the defendant’s motion fail ed to specify sufficiently t he proof sought to be admitted and the reason for its admission. Following a hearing and the def endant’s offer of proof, the trial court gra nted the state’s motion to exc lude the evidence based upon the insufficiency of the notice.

Rule 412 allows the admission in an aggravated rape trial of specific instances of conduct relativ e to the victim’s sex

ual behavior with per

sons other than the defendant if offered to rebut or explain medi cal or scientific testi mony. Tenn. R. Evid. 412(c)(4)(i). How

ever, the defendant must submit a w ritten motion no later than ten days before trial unless the evidence is newl y discovered or r

elates to a newly ar

isen issue. Tenn. R. Evid. 412(d)(1)(i). The motion must be served on all parties and must be accompanied by a wri tten offer of proof that describes the speci fic evidence and the purpose of its admission. Tenn. R. Evid. 412(d)(1)(ii) and (iii).

The record reflects that the defendant c omplied with the filing

time limit. Also, it is apparent that th e state had sufficient notice of the speci fic evidence sought to be admitted by its assertions that both the victim and her alleged partner were available to deny that they had had a se xual relationship in 1991. Therefore, we conclude that the trial court should not have excluded the evi dence due to any insufficiency in the notice to the state. Howe ver, we do conclude t hat the evidence should hav e been excluded because it consti tuted inadmissible hearsay evidence as it was. The defendant’s offer of proof consisted of the testimony of Elesha Gibson and Amanda Love, both of whom testified that the victim told them that sh e was having a sex ual relationship with anoth er adolescent in the apartment c omplex. Both witnesses6

acknowledged that they had never witnessed an y sexual activi

ty between the vic

tim and her alleged partner. One also stated that she did not know if there was any trut h to the victim’s statements and th ought that the victim mig ht have been trying t o fit in with older kids. This evidence is

hearsay when offered as trut h to rebut the medical testimony

. Therefore, the evidence was properly excluded.

III The defendant contends that the trial cour t erred in supplementing i ts instructions to the jury

after the jury had begun del iberations relative to the election of offenses. The record reflects that the state elected the specific instances upon which it would rely at the close of the state’s proof but outside the presence of the jury. The t rial court neglected to instr uct the jury on the elect ion of offenses and the requirement of jury unanimity in i

ts initial instructi ons. The jury began deli berations late in the afternoon and when deliberations resumed the following day , the trial court, sua sponte , delivered the supplemental instructions relative to the election of of fenses. Included in these instructions was

the admonishment that the supplemental i nstructions not be given any greater

weight than those prev iously given.
The trial court is required to give a complete charge of the law applicable to the facts of the case. State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1986). In order to insure jury

unanimity, when the facts of a case could implicate sev eral offenses, the trial court is r equired to instruct the jury regarding the election of the specific offense upon which the stat e is relying for a c

onviction. State v. Shelton , 851 S.W.2d 134, 136-37 (Tenn. 1993). Also, it is within the trial court’s discretion to recall a jury for supplemental inst ructions. Burton v. State , 217 Tenn. 62, 70, 394 S.W.2d 873, 876 (1965). In this case, the failure of the trial court to charge the jury rel ative to the election of offenses would have been error. Furthermore, the trial court correctly admonished the jury not to pl ace any undue emphasis on the suppl emental charge and7

to consider it in conjunc tion with the entire ch arge. Therefore, we concl ude that the trial court did not err in ins

tructing the jury, sua sponte , after deliberations had begun.

IV The defendant contends that the trial cour t erred in allowing

the jury to resume deliberations after declaring a mistrial. The defe ndant argues that the trial court placed undue pressure upon the jury to arrive at a verdict. The state responds that it was not error to conti nue deliberations when the jury indicated that pr ogress was being made and that a verdict could be reached.

On the first day of deliberati ons, the jury began deli berating at 3:20 p.m. Deliberations resumed the nex t morning after the trial c ourt issued additional instructions regardi ng the election of offenses and jury unanimity. At 11:17 a.m., the jury returned to the cour troom and the following ex change took place: THE COURT: All right. Members o f the jury, who is y

our foreman? Yes, sir. Hav e you reached a verdic t? THE FOREMAN: No, sir. THE COURT: All right. Let me ask you this. Do you feel that there is any possibil ity of reaching a ver dict? THE FOREMAN: No, sir. THE COURT: Do you feel that y ou are deadlocked? THE FOREMAN: Yes, sir. THE COURT: All right. Is that the consensus of the jury? All right. It seems to be. All rig ht --- all right. Enter a mistrial. These things happen. Don’t let it bother y ou. We appreciate your service. You’ve been away from family --- JUROR NO.3: What do es t hat mean when you have a mistrial? THE COURT : That means that no verdict i s entered. Your verdict must be unanimous, as I instructed you. JUROR NO.9: We --- we just feel we need more time. THE COURT: Do you think you can reach a verdi ct?8 JUROR NO.9: I think w e can. A JUROR: It’s possibl e. THE COURT: All right - -- all right. Then -- if you can reach a verdict, that’s w

hat I need to know. You thi nk you can ? A JUROR: We’re getting real close. THE COURT: All right. Well, that’s f ine. If y ou’re making progress, I don’t have any probl em with it; but if you’re not, then I would enter a mistri al, and it would have to be tried before another jury. But, if y ou feel that you’re mak in g progress, then r eturn to the room and continue y our deliberations. The jury deliberated for an additional thirty-five minutes before returning a guilty verdict for one count of aggravated r ape.
“The right of trial by

jury may not be impair ed or encumbered with conditions which, in their practical operation, may embarrass or violate the free and fu ll enjoyment of the right.” Kersey v. State , 525 S.W.2d 139, 144 (Tenn. 1975) (citing Neely v. State , 63 Tenn. 174 (1874)). “An instru ction that coer ces a jury into return ing a verdict is bad.” State v. Weston , 506 S.W.2d 946, 94 8 (Tenn. Crim. App. 1973). However, instead of an i nstruction creating the coercion, in this case w e are faced with the question of whether the trial court’s declaration of a mistrial unduly coerced the jury into arriving at a verdict. We note that the trial court may, in its discretion, order a jury to deliberate further after it appears that the jury is unable to reach a verdict , Kersey , 525 S.W.2d at 145, and unless a trial court cau ses a jury to reach a v erdict in such a manner that is “patently no t their free and untrammeled ver dict, a new trial w

ill not be granted.” Rushing v. State , 565 S.W.2d 893, 89 6 (Tenn. Crim. App. 1977).

In this case, the trial c

ourt asked the jury if i t was deadlocked. Upon confirming the deadlock, the tr ial court declared a mist rial. The jurors themselv es inquired into the meaning of a mistrial and indicated a willingness to work longer toward9

arriving at a verdict. We cannot conclude that the awareness of the potential for a mistrial, in this case , unduly coerced the jur y into arriving

at their verdict.

V The defendant contends that the trial cour t erred in refusing the defendant’s request for the indiv idual polling of jurors . After the foreman reported the verdict, the trial c

ourt asked each juror to r aise his or her rig ht hand to indicate that each was in agreement with the verdict. The defendant then requested tha t the jurors be polled individually

to which request the trial court responded that they had been and discharged the jury. The defendant claims that an indiv idual poll was necessa ry to insure jury unanimity

and the absence of coercion. The state argues that a showing of hands is comparable to an individual poll.

A trial court may not r

efuse to poll a jury upon re quest from either the defendant or the state. T.C.A. § 20-9- 508; Craig v. State , 506 S.W.2d 949, 950 (Tenn. Crim. App. 1973). The object of polling is to ascertain each individual juror’s verdict in order to insure a certai nty in the collectiv e verdict. See Whitwell v. State , 520 S.W.2d 338, 342 (Tenn. 1975). In Geodel v. State , 567 S.W.2d 180, 184 (Tenn. Crim. App. 1978), this court indicate d that the trial court shoul d announce the verdict and then inquire individual ly into each juror’s agreement, allowing

for a yes or no response from each juror. This process should be followed by the t rial court in the future upon request, because it prov ides the surest means of veri fying the fact of both an indiv idual and collective verdict by the jurors. However, although we doubt that an en masse hand-raising necessari ly supplies equal c ertainty of a verdict, we are unable to conclude on the record before us t hat the polling as conducted masked a less than unanimous verdict.10 In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.

Joseph M. Tipton, Judge CONCUR:

Gary R. Wade, Judge

John K. Byers, Sen ior Judge