State v. Johnson

53 S.W.3d 628 (2001)

STATE of Tennessee
v.
Robert Derrick JOHNSON.

Supreme Court of Tennessee, at Nashville.

August 22, 2001.

John E. Herbison, Nashville, TN, for appellant, Robert Derrick Johnson.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Marvin E. Clements, Jr., Assistant Attorney General; William Michael McCown, District Attorney General; Robert G. Crigler and Hollynn Hewgley, Assistant District Attorneys General, Fayetteville, for appellee, State of Tennessee.

OPINION

FRANK F. DROWOTA, III, J., delivered the opinion of the court, in which ADOLPHO A. BIRCH, JR. and WILLIAM M. BARKER, JJ. joined.

We granted this appeal to consider two issues: whether the evidence introduced at trial indicated two separate offenses of sexual battery such that the trial court erred in failing to require the State to make an election at the close of the proof; and (2) whether the trial court erred in failing to give the jury an enhanced unanimity instruction. The Court of Criminal Appeals found that no election was required because the proof did not establish two separate offenses but concluded that the trial court erred by failing to give an enhanced unanimity instruction. However, the Court of Criminal Appeals found the error harmless and affirmed the defendant's conviction. After a careful and thorough review of the record and relevant authority, we agree with the Court of Criminal Appeals that the proof in this case indicates only one offense, with the two touches establishing one element, sexual contact, of the charged offense, sexual battery. Therefore, we conclude that the trial court did not err in failing to require an election. However, we do not agree that the trial court erred in failing to give the jury an enhanced unanimity instruction. Accordingly, we affirm the judgment of the Court of Criminal Appeal on the separate grounds stated.

Background

On December 27, 1997 at approximately 11:45 a.m., the victim, Wendy Smith, a driver for Brown's Taxi, picked up the defendant Robert Derrick Johnson at "The Pantry" in Shelbyville, Tennessee. The defendant put his jacket in the back seat of the taxi, but rode in the front seat with the victim. The defendant asked the victim to drive him to Wartrace. They arrived in Wartrace, but the defendant was unable to direct Smith to his friend's house, and they became lost. Eventually, the defendant told Smith his leg was hurting, and he asked her to stop the taxi. Smith pulled over, and the defendant got into the back seat of the taxi. Smith resumed driving, following the defendant's directions. Smith continued to drive, but she expressed concern because the area was remote and the road was hilly, curvy, and snow-covered.

Despite her concerns, Smith continued to drive, following the defendant's directions. At some point as she was driving, the defendant reached forward, wrapped a coat hanger around her neck,^[1] and demanded to know how much money she had. When Smith replied that she had $57.50, the defendant insisted that she give him the money. Smith immediately handed the defendant the bank bag containing money. Because she was having trouble breathing, Smith asked the defendant to loosen the coat hanger and begged him not to kill her because she wanted to see her children again. The defendant loosened the coat hanger, but he did not remove it. Eventually, the defendant removed the coat hanger from Smith's neck, climbed into the front seat of the taxi, and continued to give driving directions.

The defendant repeatedly asked whether Smith intended to report him, and she reassured him that she would not and that she would give the police an incorrect description. Upon hearing this, the defendant said that he would let Smith go, but, he reached over, rubbed Smith's breast and between her legs over her clothing, and asked if she "had ever been with a black man." When he touched Smith between her legs, he realized that she had urinated on herself, and he stopped touching her. Smith asked to stop and use the restroom, but the defendant would not allow it, and he jerked the steering wheel when Smith tried to stop at a store, telling Smith not to do anything stupid. He reached beneath his shirt, and Smith testified that she did not know whether he had "a gun or what."

Eventually, the defendant threw the coat hanger out the window and told Smith to drive him to Shelbyville Central High School. She complied, and after the defendant had gotten out of the taxi, Smith asked the dispatcher at Brown's Taxi to call the police. Smith drove back to the taxi station where she met the police and reported the incident. Smith had seen the defendant before the incident and was able to identify him from police photographs.

The defendant was arrested and indicted for aggravated robbery, aggravated kidnapping, and aggravated sexual battery. At trial, Smith identified the defendant as the person who robbed her and touched her breast and between her legs. The defendant admitted that he robbed Smith, but he denied touching her. The jury found the defendant guilty of aggravated robbery, false imprisonment, and sexual battery.^[2]

The Court of Criminal Appeals affirmed the defendant's convictions and sentences. With regard to the sexual battery conviction, the intermediate court held that the proof in this case indicated only one offense of sexual battery, thereby eliminating the need for the State to make an election of offenses at the close of the proof. The intermediate court further held, however, that the trial court erred in failing to give an enhanced unanimity instruction, but found that the error was harmless beyond a reasonable doubt.

Thereafter, we granted the defendant's application for permission to appeal to determine whether the facts of this case establish two separate offenses so that the trial court erred by failing to require the State to elect the facts upon which it was relying to establish the offense of sexual battery; and whether the trial court erred in failing to give the jury an enhanced unanimity instruction.

Election of Offenses

This Court has consistently held that the prosecution must elect the facts upon which it is relying to establish the charged offense if evidence is introduced at trial indicating that the defendant has committed multiple offenses against the victim. See State v. Kendrick, 38 S.W.3d 566, 568 (Tenn.2001); State v. Brown, 992 S.W.2d 389, 391 (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, 851 S.W.2d 134, 137 (Tenn.1993). The election requirement safeguards the defendant's state constitutional right to a unanimous jury verdict by ensuring 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. State, 117 Tenn. 58, 94 S.W. 675 (1906). This Court in Jamison held that proof of all sexual acts allegedly committed by the defendant against the victim could be admitted into evidence, but to avoid the prosecution of uncharged sex crimes, the State was required to elect the specific act upon which it was relying to obtain a guilty verdict. Jamison, 94 S.W. at 676. Since Jamison, the election requirement has been applied almost exclusively in the sex crimes context, and specifically, when the defendant is alleged to have committed a series of sexual acts over a lengthy period of time against young children who are unable to identify the exact date on which any one act 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 defendant 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 and five others on different days); Walton, 958 S.W.2d at 724 (finding an election should have been required where sexual offenses were charged in a multi-count, 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 over a year); Burlison v. State, 501 S.W.2d 801, 804 (Tenn.1973) (finding an election should have been required where the defendant was charged with having "carnal knowledge" of the victim on "divers days between the summer of 1964 and August, 1969," but the proof did not show any particular date).

In 1994, this Court overruled Jamison to the extent it had established a "sex crimes exception" that permitted proof of all sexual acts allegedly committed by the defendant against the victim, whether charged or uncharged. See State v. Rickman, 876 S.W.2d 824, 829 (Tenn.1994) (overruling Jamison). Nonetheless, we recognized in Rickman that out of necessity indictments often charge general time frames that encompass several months. In those instances, we concluded that the State may introduce evidence of sex crimes allegedly committed against the victim during the time frame charged in the indictment, but, at the close of the proof, the State must elect the facts upon which it is relying for conviction. Id.

However, as the Court of Criminal Appeals recognized, the defendant's right to a unanimous jury verdict is not implicated in this case because the State charged only one offense and offered proof of only one offense—sexual battery. The facts of this case are significantly different from previous decisions applying and discussing the election requirement. Here, the indictment alleged that the offense occurred on a specific date certain. The proof did not show that the defendant had committed a series of sexual acts over a lengthy period of time. As the Court of Criminal Appeals stated, "[i]t is apparent from the evidence that all of this happened quickly and virtually simultaneously."

In our view, the defendant's assertion that the proof in this case established multiple offenses is simply incorrect. At most, the proof in this case established two touches that constitute one element of sexual battery, the offense charged. Sexual battery is defined as follows:

[U]nlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following circumstances:

(1) Force or coercion is used to accomplish the act;

(2) The sexual contact is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the contact that the victim did not consent;

(3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless. . . .

Tenn.Code Ann. § 39-13-505. Simply stated, the elements of sexual battery are (a) sexual contact; (b) with a victim by the defendant or the defendant by the victim; (c) accompanied by one of the circumstances listed as 1-3 above. See State v. Hammonds, 30 S.W.3d 294, 298 (Tenn.2000) (listing the elements of aggravated assault); State v. Ducker, 27 S.W.3d 889, 895 (Tenn.2000) (listing the elements of reckless killing of a child). One element of the offense, "sexual contact," is further defined as:

the intentional touching of the victim's, the defendant's, or any other person's intimate parts, or the intentional touching of the clothing covering the immediate area of the victim's, the defendant's, or any other person's intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.

Tenn.Code Ann. § 39-13-501(6) (emphasis added). Significantly, the statute uses the plural "parts" rather than the singular "part." Therefore, the statute contemplates that the element of "sexual contact" may be established by proof that the defendant touched more than one of the areas included within the definition of "intimate parts."^[3] Simply stated, the element "sexual contact" was proven in this case by the victim's testimony that the defendant intentionally touched her breast and her groin area for the purpose of sexual arousal or gratification. This proof established one element of the charged offense, not two separate offenses, and the trial court did not err in refusing to require an election.^[4]

The Court of Criminal Appeals has correctly and consistently recognized that the sexual battery statute is aimed at preventing sexual contact which may consist of more than one touch. Addressing the issue in an unpublished opinion, the Court of Criminal Appeals aptly explained the significant point:

The gravamen of the [] sexual battery statute is physical sexual contact for the purpose of sexual arousal or gratification. Unlike the definition of penetration, the definition of this offense does not contain physical acts of sexual contact listed separately and alternatively. Indeed, the language more closely resembles the general language used to define aggravated assault in [State v.] Pelayo [881 S.W.2d 7 (Tenn.Crim.App. 1994)].

State v. Bain, No. 03C01-9311-CR-00384, 1995 WL 495932 (Tenn.Crim.App., Knoxville, Aug. 21, 1995) (emphasis added) (concluding that three touches of various parts of victim's body during one brief encounter constituted one offense of aggravated sexual battery); see also State v. Perry Hinkle, No. 02-C01-9603-CR-00076, 1996 WL 601726 (Tenn.Crim.App., Jackson, Oct. 22, 1996) (upholding defendant's conviction for one count of aggravated sexual battery for touching child on breasts and vagina during one encounter).^[5]

If the entire instance of sexual contact occurs quickly and virtually simultaneously, then only one offense has occurred, even if more than one touching has occurred.^[6] Accordingly, the prosecution need not elect which touch it is relying upon to establish sexual contact—an element of the charged offense—sexual battery. See State v. Adams, 24 S.W.3d 289, 297 (Tenn.2000) ("Our cases have not required that a jury unanimously agree as to facts supporting a particular element of a crime so long as the jury agrees that the appellant is guilty of the crime charged.")

This conclusion is also supported by several other prior decisions of this Court. For example, we have previously held that a general verdict of guilt of first degree murder poses no constitutional problems even though some jurors may have convicted based on proof of premeditation and some jurors may have convicted based on proof of felony murder. See, e.g., State v. Cribbs, 967 S.W.2d 773, 787 (Tenn.1998). The crucial point is all jurors unanimously agreed that the defendant was guilty and had committed the single offense charged even if some found premeditation and others found commission during the course of a felony. Likewise, in State v. Lemacks, 996 S.W.2d 166, 171 (Tenn.1999), we held that the prosecution was not required to elect criminal responsibility or direct liability when seeking a conviction for the single offense charged, driving under the influence. Again, the crucial point is all jurors unanimously agreed the defendant was guilty of the single offense charged even if some found criminal responsibility and others based their verdict on direct liability. See also State v. Suttles, 30 S.W.3d 252, 262 (Tenn.2000) (holding that the prosecution need not elect the proof upon which it is relying to establish the (i)(5) aggravating circumstance which itself has alternative prongs). Likewise, in the present case, so long as the jurors agreed that the defendant engaged in sexual contact on the date charged, the defendant was afforded his constitutional right to juror unanimity. This is true even though some of the jurors may have based their finding on one touching, and others may have based their finding on the other touching.

Also relevant to the analysis in this case is State v. Phillips, 924 S.W.2d 662 (Tenn.1996), a case in which the defendant was convicted of multiple sexual offenses. Before this Court, Phillips alleged that the multiple convictions violated his constitutional protection against double jeopardy because he had committed a single criminal offense. In determining whether the defendant's multiple convictions arose from a single criminal offense we considered the following factors: (1) the nature of the acts committed by the defendant; (2) the area of the victim's body invaded by the defendant's sexually assaultive behavior; (3) the time elapsed between the defendant's discrete acts of sexually assaultive conduct; (4) the defendant's intent in the sense that the lapse of time may indicate a newly formed intent to again seek sexual gratification or inflict abuse; and (5) the cumulative punishment. Id. at 665. In Phillips, we determined that the multiple acts of penetration, distinct in nature and separated in time, constituted discrete offenses so that the prosecution could constitutionally seek multiple convictions.

In contrast, application of the Phillips factors does not militate in favor of a finding of two offenses in this case. The nature of the act is touching. Two parts of the victim's body were touched. There were no discrete acts of sexually assaultive conduct, such as occurred in Phillips. Little or no time elapsed between the touching; therefore, no evidence exists to indicate a newly formed intent to again seek sexual gratification. The proof showed only one instance of sexual contact, whereas the proof in Phillips showed separate acts of penetration. As to cumulative punishment, the way in which sexual battery is defined by statute suggests that the General Assembly intended to punish for each instance of sexual contact, not for each separate touch that may comprise one instance of sexual contact. Applying the Phillips factors, we conclude that the proof in this case indicates only one offense.^[7]

Were we to hold that the prohibited touching in this case which occurred within a matter of minutes establishes two separate offenses, then a defendant involved in an assault could be charged, convicted, and punished for each individual blow struck, even if the entire assault occurs in only a matter of minutes. The Court of Criminal Appeals has already rejected such a result in State v. Pelayo, 881 S.W.2d 7 (Tenn.Crim.App.1994), where the defendant was convicted of two counts of aggravated assault for cutting the victim first on the arm, and again, a few moments later, on the leg as she attempted to escape. The Court of Criminal Appeals concluded that the defendant had committed only one offense, stating: "[w]hile the assaults were separated by time and place, . . . they coalesced into an ``unmistakable single act,' though separated by a few seconds and feet." Id. at 13. In so holding the intermediate court noted that the aggravated assault statute focuses on the act of causing injury, fear, or physical contact. Id. The Pelayo court noted that the General Assembly did not intend for a defendant to be punished separately "for each blow or injury." Id.^[8]

Under existing Tennessee law, therefore, dual convictions for the conduct at issue in this case would be constitutionally prohibited.^[9] That being the case, there is no legal or logical reason to hold that these facts establish two offenses for purposes of election.

While we affirm the Court of Criminal Appeals' conclusion that the proof in this case indicates only one criminal offense, we cannot agree with the Court of Criminal Appeals that the trial court erred in failing to provide the jury with an enhanced unanimity instruction. The record reflects that the jurors were instructed to render a unanimous verdict. The record does not reflect that the defendant requested an enhanced unanimity instruction. Moreover, the evidence indicated only one offense, so there was no need for such an instruction. Finally, such an instruction is not required even in cases where the proof does indicate more than one offense. The election requirement itself alleviates any unanimity concerns. Those states which require an enhanced unanimity instruction appear to rely upon it instead of, not in addition to, an election requirement. See State v. Greene, 137 N.H. 126, 623 A.2d 1342, 1344-45 (1993); State v. Weaver, 290 Mont. 58, 964 P.2d 713, 720 (1998). Accordingly, we do not agree with the Court of Criminal Appeals that the trial court erred by failing to give an enhanced unanimity instruction.

Conclusion

Having concluded that the trial court did not err either by failing to require the State to make an election or by failing to give the jury an enhanced unanimity instruction, we affirm, on the separate grounds stated, the judgment of the Court of Criminal Appeals. It appearing that the defendant is indigent, costs of this appeal are taxed to the State.

E. RILEY ANDERSON, C.J. filed a dissenting opinion in which JANICE M. HOLDER, J., joined.

E. RILEY ANDERSON, C.J., with whom JANICE M. HOLDER, J., joins, concurring in part and dissenting in part.

I fully concur in the majority's affirmance of the defendant's convictions and sentences for aggravated robbery and false imprisonment. The majority, however, has erroneously concluded that the prosecution was not required to make an election of offenses and that the trial court did not err in failing to give an enhanced instruction to ensure that the jury's verdict was unanimous as to the offense of sexual battery. The majority's holding is based on its view that there was evidence of only one offense of sexual battery, notwithstanding the fact that the defendant committed two separate and distinct acts of sexual contact against the victim. In reaching this conclusion, the majority has misapplied existing precedent and statutory law and has created a muddled analysis that, as applied to the offense of sexual battery, permits a defendant to commit numerous acts of sexual contact against a victim with no criminal consequence. I therefore dissent.

In my view, there was evidence from which the jury could reasonably find two offenses of sexual battery and the prosecution was therefore required to elect which offense it relied upon to establish the conviction. Moreover, the prosecution's failure to follow this well-established requirement denied the defendant his constitutional right to a unanimous jury verdict in violation of article I, § 16 of the Tennessee Constitution and requires a new trial on this offense.

ELECTION OF OFFENSES

As the majority recognizes, this Court has long and consistently held that "when the evidence indicates [that] the defendant has committed multiple offenses against a victim, the prosecution must elect the particular offense as charged in the indictment for which the conviction is sought." State v. Brown, 992 S.W.2d 389, 391 (Tenn.1999). This requirement, which is grounded in part upon the Tennessee Constitution, has been reaffirmed and enforced by this Court on numerous occasions. See State v. Kendrick, 38 S.W.3d 566, 568 (Tenn.2001); 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, 851 S.W.2d 134, 137 (Tenn.1993).

The paramount importance of the election requirement is that it protects a defendant's right to a unanimous jury verdict under the Tennessee Constitution by ensuring that jurors deliberate over and render a verdict based on the same offense. State v. Brown, 992 S.W.2d at 391. As this Court has observed:

[T]here should be no question that the unanimity of twelve jurors is required in criminal cases under our state constitution. A defendant's right to a unanimous jury before conviction requires the trial court to take precautions to ensure that the jury deliberates over the particular charged offense, instead of creating a "patchwork verdict" based on different offenses in evidence.

State v. Shelton, 851 S.W.2d at 137 (citations omitted). The election requirement serves other interests as well: it enables a defendant to prepare for a specific charge; it protects a defendant against double jeopardy; it enables the trial court to review the weight of the evidence in its capacity as thirteenth juror; and it enables the appellate court to review the legal sufficiency of the evidence. See State v. Brown, 992 S.W.2d at 391.

The majority asserts that the election doctrine has often been applied in cases involving multiple offenses occurring over a period of time. See State v. Walton, 958 S.W.2d at 727. While this assertion may be correct, it is equally significant to note that we have never limited the election doctrine to cases involving multiple charges. See, e.g., Kendrick, 38 S.W.3d at 568; Brown, 992 S.W.2d at 389. Nor have we limited the election doctrine to cases in which the indictment alleges that the charged offense or offenses occurred over a certain period of time. See Kendrick, 38 S.W.3d at 568. In sum, the concern for jury unanimity and the requirement for an election may arise in any case in which the defendant has been charged with an offense and the evidence indicates that more than one offense was committed.

MULTIPLE OFFENSES

The majority properly recognizes that the election issue in this case turns on the question of whether there was evidence of multiple offenses of sexual battery. The apparent rationale for the majority's conclusion that there was only one offense is twofold: first, that the relevant statutory provisions allow evidence of multiple acts of "sexual contact" to be used in proving a single offense of sexual battery; and second, that an analysis of the relevant factors in State v. Phillips, 924 S.W.2d 662 (Tenn.1996) establishes that only one offense of sexual battery was committed. The majority is wrong on both counts.

Statutory Analysis

As the majority discusses, the offense of "sexual battery" is statutorily defined as an "unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following circumstances":

(1) Force or coercion is used to accomplish the act;

(2) The sexual contact is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the contact that the victim did not consent;

(3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or

(4) The sexual contact is accomplished by fraud.

Tenn.Code Ann. § 39-13-505(a) (1997). In addition, "sexual contact" is defined as follows:

"[T]he intentional touching of the victim's, the defendant's, or any other person's intimate parts, or the intentional touching of the clothing covering the immediate area of the victim's, the defendant's, or any other person's intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification."

Id. § 39-13-501(6) (1997). Finally, "intimate parts" include "the primary genital area, groin, inner thigh, buttock or breast of a human being." Id. § 39-13-501(2) (1997).

The majority's statutory analysis of the offense rests entirely upon the fact that the definition of "sexual contact" includes the plural term "parts." Id. § 39-13-501(6) (1997). Relying solely upon this plural term, the majority leaps to the startling conclusion that the prosecution may introduce evidence of multiple acts of sexual contact in proving a single charge of sexual battery regardless of the nature of the contact or the areas of the victim invaded by a defendant. Although the majority claims that this is the "plain" meaning of the statute, such an interpretation means that any act of sexual contact after the initial act of sexual contact would be of no legal consequence. I cannot believe that the legislature intended to allow any defendant to commit multiple acts of sexual contact against a victim and be guilty of but a single offense.

Moreover, the majority overlooks or finds no significance in the fact that the legislature delineated specific areas of the victim in the definition of "intimate parts." See id. § 39-13-501(2) (1997). As one court has said:

In defining ``intimate parts,' the . . . statute lists five separate protected areas: the genital area, groin, buttocks, anus and breast. We hold that the legislative intent was to protect the victim from intrusions to each enumerated part. Thus, under the facts of this case, which showed distinctly separate touchings of two of the protected areas, defendant was properly convicted and separately sentenced for [two counts].. . . Separate punishments are sustainable where evidence shows distinctly separate touchings to the different parts.

State v. Williams, 105 N.M. 214, 730 P.2d 1196, 1199 (App.1996) (emphasis added). In my view, the statutory definition of "intimate parts" reflects the legislature's intent to provide more protection for victims and not less as the majority believes. Thus, I reject the majority's statutory interpretation that serves as the underlying premise for its holding.

State v. Phillips

The majority bolsters its conclusion that the evidence revealed only a single offense of sexual battery by applying the factors set forth in Phillips, which include (1) the nature of the acts; (2) the area of the victim's body invaded by the sexually assaultive behavior; (3) the time elapsed between the discrete conduct; (4) the accused's intent; and (5) the cumulative punishment imposed. 924 S.W.2d at 665. Although I fully agree that the Phillips factors are useful in determining whether there were multiple offenses for the purpose of election, see State v. Kendrick, 38 S.W.3d at 569, I believe that the majority has misapplied the Phillips analysis and has again reached the wrong conclusion.

There is no dispute that the defendant first touched the victim's breast and thereafter touched the victim over the clothes between her legs. Although the record is silent as to the exact time between the two touchings, I believe that a jury could reasonably find that the second touch was purposeful, intentional, and distinct from the first touch. Two separate areas of the victim's body were clearly invaded by the defendant's conduct and neither touch was accidental or incidental to the other touch. It may be inferred from the purposeful and intentional nature of the second touch that it, like the first touch, resulted from a desire for sexual gratification. Finally, although the cumulative punishment factor does not apply in this case since the defendant was convicted of only one count of sexual battery, several courts have upheld multiple convictions in cases similar to this one. State v. Williams, 730 P.2d at 1199; State v. Suarez, 736 P.2d 1040, 1042 (Utah Ct.App.1987); State v. Rummer, 189 W.Va. 369, 432 S.E.2d 39, 47 (1993). Accordingly, a complete analysis of the Phillips factors supports a finding that the defendant committed two offenses of sexual battery.

The majority, however, has applied Phillips to conclude that the defendant's conduct consisted of a single offense. Moreover, the majority postulates that there was no evidence of multiple offenses, but rather, evidence of multiple touches that would satisfy an element of the offense, i.e., sexual contact.^[1] The majority's view hinges almost entirely on its determination that "little or no time elapsed between the touchings" and that there was no evidence "to indicate a newly formed intent to again seek sexual gratification." The majority fails to consider that the sexual contact was two separate, statutorily protected areas of the victim's body; that each act of sexual contact was separate and distinct from the other; that neither act of sexual contact was accidental or incidental to the other; and that a jury could reasonably find that either touch was accompanied by a desire to gain sexual gratification.

Moreover, the majority's review of the cold appellate record provides little or no guidance as to how it arrived at its conclusion or how the analysis is to be applied in future cases. How short is a period of "little or no" time? How many acts of sexual contact may a defendant commit against a victim in a given period of time and be guilty of but one offense? What evidence does the majority rely upon to conclude that acts of sexual contact occurred "quickly and virtually simultaneously?" What factors, other than the amount of time, has the Court looked to with regard to the element of sexual gratification? These questions are unanswered. The majority instead focuses entirely upon the short amount of time that elapsed during the offense and gives no apparent significance to the remaining factors under Phillips. Contrary to the majority's assertion, I am not misstating its holding; I simply find it to be erroneous.

Finally, although the majority surprisingly asserts that dual convictions under the facts of this case would be barred by double jeopardy principles, I once again note that other jurisdictions have held that multiple punishments are appropriate where multiple convictions are based on facts similar to the present case. See State v. Williams, 730 P.2d at 1199; State v. Suarez, 736 P.2d at 1042; State v. Rummer, 432 S.E.2d at 47. The majority's view, which focuses solely upon the passage of time, in effect revives the "single transaction" or "same criminal episode" analysis for applying double jeopardy principles. This analysis was rejected in Phillips.

Although it contends it is following "well-established" law, the majority cites no published Tennessee cases that are on point. Instead, it relies primarily upon an intermediate court opinion, State v. Pelayo, 881 S.W.2d 7 (Tenn.Crim.App.1994), and several unpublished Court of Criminal Appeals opinions that were decided before our decision in Phillips. The reliance on Pelayo is further misplaced in that it involved the offense of aggravated assault, the statutory provisions for which do not delineate or mention specific areas of the victim's body. See State v. Williams, 730 P.2d at 1199. Despite the absence of controlling authority in Tennessee, the majority ignores similar cases decided by courts in our sister jurisdictions and instead criticizes this dissent for its reference to those cases.

CONCLUSION

Accordingly, since in my view there was evidence of two offenses of sexual battery, it follows that under Tennessee law the prosecution was required to elect which offense it relied upon for the sexual battery conviction.^[2] As we noted in State v. Shelton, a failure to elect implicates the constitutional right to a unanimous verdict and is, therefore, subject to constitutional harmless error analysis. 851 S.W.2d at 138. I would initially emphasize that the prosecution's duty to elect is well-established and that this Court has repeatedly stated that the purpose of election is to preserve the constitutional right to a unanimous jury verdict. In this case, the jury was presented with two offenses of sexual battery based on two acts of sexual contact that occurred in two separate and distinct statutorily protected areas of Smith's body. Because of the State's failure to elect the offense it relied upon for the conviction, it cannot be determined whether the jury was unanimous in its verdict. The State has, therefore, failed to show that the error was harmless beyond a reasonable doubt.

In my view, the majority has misapplied existing precedent and statutory law and has created a muddled analysis that, as applied to the offense of sexual battery, permits a defendant to commit numerous acts of sexual contact against a victim with no criminal consequence. I would hold that there was evidence from which the jury could reasonably find two offenses of sexual battery and that the prosecution was therefore required to elect which offense it relied upon to establish the conviction. Moreover, the prosecution's failure to follow this well-established requirement denied the defendant his constitutional right to a unanimous jury verdict in violation of article I, § 16 of the Tennessee Constitution and requires a new trial on this offense. Finally, I am authorized to state that Justice Holder joins in this concurring and dissenting opinion.

NOTES

[1] The defendant later stated that he found the coat hanger in the backseat of the taxi.

[2] The jury imposed a fine of $5,000 for aggravated robbery, $2,000 for false imprisonment, and $3000 for sexual battery. Following a sentencing hearing, the trial court sentenced the defendant to ten years for aggravated robbery; nine months for false imprisonment; one year and four months for sexual battery; and approved the fines assessed by the jury. The trial court ordered that the one-year and four-months sentences be served consecutively to the ten-year sentence and that the nine-month sentence be served concurrently to the ten-year sentence, thereby resulting in an effective sentence of eleven years and four months.

[3] "Intimate parts . . . includes the primary genital area, groin, inner thigh, buttock or breast of a human being." Tenn.Code Ann. § 39-13-501(2).

[4] While the dissent characterizes our reliance upon the plural term used in the statute as a "startling conclusion," the law is clear that the plain language of a statute is the best indication of legislative intent.

[5] Unpublished intermediate appellate court opinions are persuasive authority. See Sup. Ct. R. 4(H)(1).

[6] The dissent misstates our holding when it asserts that multiple acts of sexual contact will always constitute only a single offense of sexual battery. We are merely holding that where, as here, the sexual contact occurs quickly and virtually simultaneously, only one offense is established. In so holding, we announce no new rule, we are merely applying well-established law, with which the dissent obviously disagrees.

[7] The dissent's assertion that our analysis provides no guidance for future cases is plainly wrong. We have fully explained our application of the Phillips factors. Trial courts apply such factors on a regular basis and are well able to do so in future cases of this type. We need not articulate a bright-line rule. Indeed, Phillips rejected such a rule in favor of a case-by-case application of the relevant factors.

[8] The Pelayo court relied upon another unpublished opinion of the Court of Criminal Appeals, State v. Ronald St. Clair, No. 1158, 1990 WL 146519 (Tenn.Crim.App., Knoxville, Oct. 8, 1990) (Birch, J., author). In St. Clair, the defendant received two assault convictions for accosting a ninety-two-year-old woman in her home, threatening her with a knife, threatening to kill her, dragging her into or toward another room and choking her severely, all within a matter of minutes. The issue on appeal was whether the legislature intended that two punishments be imposed for a single criminal act. The Panel concluded that the events coalesced into an unmistakable single act of assault with a weapon, and therefore, the defendant had been twice convicted for a single offense in violation of double jeopardy.

[9] The dissent refuses to apply existing law and concludes that dual convictions are appropriate because courts in other states uphold dual convictions in similar cases. This Court applies existing Tennessee precedent unless a valid reason exists for departing from it. In this case, we perceive no valid reason for departing from established law.

[1] As I have previously stated, the majority's purported statutory basis for this alleged distinction is misplaced. Moreover, the majority's conclusion is tantamount to finding that the offense of sexual battery is a continuing offense. Indeed, the majority goes on to rely upon State v. Adams, 24 S.W.3d 289 (Tenn.2000), in which this Court held that election was not required for a continuing offense. If the majority is of the opinion that sexual battery is a continuing offense as a matter of law, it has cited no authority in support of such a conclusion.

[2] I would lastly note that the election cases cited as authority by the majority apply only if one accepts the majority's faulty premise that there was but a single offense in this case, which I obviously do not. In both State v. Cribbs, 967 S.W.2d 773 (Tenn.1998) and State v. Lemacks, 996 S.W.2d 166 (Tenn.1999), the issue concerned multiple theories for which election is not required and not multiple offenses for which election is required. Finally, as I noted earlier, the Court in State v. Adams, 24 S.W.3d 289 (Tenn.2000), simply held that election was not required for a continuing offense.