State of Tennessee v. Mark S. Armstrong

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 11, 2005 Session

STATE OF TENNESSEE v. MARK S. ARMSTRONG

Direct Appeal from the Circuit Court for Rutherford County

No. F-53628 James K. Clayton, Jr., Judge

No. M2004-02432-CCA-R3-CD - Filed July 22, 2005

A Rutherford County jury convicted the Defendant, Mark S. Armstrong, of aggravated rape, and the

trial court sentenced the Defendant to twenty years, as a Range I offender. On appeal, the Defendant

contends that: (1) the trial court erred when it failed to grant the Defendant’s motion for a mistrial

when inadmissible evidence was admitted through an inadequate redaction of a videotaped

statement; (2) the trial court erred in failing to provide an adequate limiting instruction to the jury

regarding a videotape sound malfunction; (3) the trial court erred when it failed to require the State

to make an election of the offense for which it sought a conviction; (4) the trial court erred in failing

to grant the Defendant’s motion for judgment of acquittal; and (5) the evidence is insufficient to

sustain the Defendant’s conviction. Finding no error, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and

ALAN E. GLENN , JJ., joined.

John C. Mitchell (at trial), and Allen D. Hale (on appeal), Murfreesboro, Tennessee, for the

appellant, Mark S. Armstrong.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;

William C. Whitesell, Jr., District Attorney General; and Laurel A. Nutt, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Facts at Trial

In February 2003, the Rutherford County Grand Jury indicted the Defendant for aggravated

rape. On January 27 and 28, 2004, at the Defendant’s jury trial, the following evidence was

presented: A.M.,1 the victim, testified that she was thirteen years old in August of 2002. She recalled

that, on August 6, 2002, she lived down the street from the Defendant. She said that she was friends

with the Defendant’s wife, Susan Armstrong, and his children, and she and her siblings often played

at the Defendant’s house. She said that, on August 6, she told her sister, that she was going to the

Defendant’s house to get a skirt from his wife. A.M. recalled that her younger brother was at the

Defendant’s house playing with the Defendant’s son.

She said that she went to the Defendant’s house, and, after no one answered the front door,

she walked around to the garage and saw the Defendant. She said that she asked the Defendant if

his wife was at home, and he informed her that she was not. She asked the Defendant if she could

go into the house to retrieve a skirt that she had lent to his wife, and he told her that was fine. A.M.

said that she went into the house and walked upstairs, and she could hear the television in the

playroom downstairs where her brother was playing. She testified that, as she reached the top of the

stairs, she felt the Defendant “touching [her] butt. And that’s when he picked [her] up, and he set

[her] on [his] bed.” A.M. recalled that the Defendant lifted her shirt and began touching her chest

underneath her bra. She said that the Defendant then removed his clothes and fully removed all of

her clothes. She testified that the Defendant digitally penetrated her, and, “It hurt.” She said that

the Defendant then penetrated her with his penis, and, “It hurt.” She recalled that she said “ow,” but

she did not scream or call out for help because she was afraid. She explained that she thought, “if

he did what he did in the first place, [she] was afraid he would do something else if [she] tried to call

for help.” A.M. recalled that the Defendant was “moving up and down” and “breathing hard.” She

recalled that after he stopped, she “rolled out from under him,” got dressed, and quickly left the

house, taking with her the skirt she had come to retrieve. She said that there was “wet stuff” on the

bed, and the Defendant tried to wipe it off with his hand. A.M. testified that she did not see anyone

when she was leaving the Defendant’s house.

A.M. testified that she went to her house, and she told her sister that she was going next door

to see their neighbor, Shera Allen. She recalled that, before she went to Allen’s house, she called

the Defendant and told him that she was going to “tell on him” and that she “might be pregnant,” and

the Defendant responded, “no” both times. She said that she was crying and scared as she told Allen

about the events at the Defendant’s house, and she asked Allen to tell the victim’s sister what

happened. Allen walked with A.M. to A.M.’s house, and A.M. sat with Allen while she talked to

A.M.’s sister. A.M. said that she then called her stepmother at work to tell her what had happened,

and she thought her stepmother called the police, because the police came to her house shortly after

she spoke to her stepmother, and her father came home around this time as well. A.M. said that the

police came to her house and questioned her about the events at the Defendant’s house. She said that

they collected the clothes that she had been wearing, and then they put her in an ambulance, which

drove her to the “doctor and [to] get checked.”

On cross-examination, A.M. testified that she did not know that the Defendant had followed

her into the house until she was in his bedroom, and he had begun touching her. She said that he

1

It is the policy of this Court to refer to the victims of sexual assault by their initials only.

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entered the bedroom and closed the door. She said that the Defendant did not speak to her during

the incident, and he did not speak to her while she got dressed after the incident. She remembered

giving the police a statement, but she was not aware that the interview was recorded. On

redirect-examination, A.M. reiterated that she was afraid to scream for help, and she explained that

she was also frightened because the Defendant’s facial expression during the incident, “was all mean

looking . . . . Like his eyebrows were all down . . . [and] he was breathing hard . . . .”

Detective Mark Warf, an investigator with the Rutherford County Sheriff’s Department,

testified that he has been with the sheriff’s department for nineteen years. Detective Warf recalled

that, when he arrived on the scene of the incident, A.M. was upset and crying in the back of the

ambulance. He said that he interviewed A.M. at the scene and again on a different day. He recalled

that he spoke to the Defendant briefly at his home, and the Defendant came voluntarily to the police

station to give a statement. He said that he collected the comforter, cover sheet, and fitted sheet from

the Defendant’s bed as evidence, and he sent these items to the Tennessee Bureau of Investigation

(“TBI”) crime lab for analysis and testing. The detective said that the Defendant gave both a written

statement and a videotaped statement. The Defendant’s videotaped statement was played for the

jury. In his videotaped statement, the Defendant denied any sexual contact with A.M., and he

referred to her as “a hot thirteen year old kid.” Detective Warf further testified that, with a search

warrant, he obtained a sample of the Defendant’s blood for analysis and testing.

Detective Warf read the Defendant’s written statement, stating:

Tuesday, August 6th, 2002. [A.M.] came over around maybe 2 pm or so, I

was in the garage on the phone, and she said she needed to talk to her brother who

was in the house with my son. I told her that he was in the house, and she went on

in like always.

Then in maybe five to ten min[utes], she came back to the doorway and said

something about a skirt. I was still on the phone with Alexander Ford parts

dep[artment], and I told her I did not know nothing about it. She said that my wife

Susan had told her where it was, and I told her it would be ok[ay] for her to go

upstairs and look.

I was never in the house the whole time she was there. She came back out in

a few min[utes] with a skirt and said by[e]. I said see y[ou]. To add this, her sister

called and ask[ed] if my daughter could play and I told [her] she was sleeping. [T]his

is while she is looking for her skirt.

The Detective said that, along with the items he collected from the Defendant’s home and the

Defendant’s blood, he also sent A.M.’s rape kit, and the shorts, shirt, bra, and underwear that she

was wearing at the time of the incident to the TBI crime lab.

On cross-examination, the detective testified that, when he first went to the Defendant’s

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house, the Defendant was cooperative and gave the detective consent to search his home. Detective

Warf recalled that the Defendant voluntarily met the detective at the police station for questioning,

immediately after the detective requested. He said that he formed his opinion that the Defendant had

raped A.M. during his interview with the Defendant, because the Defendant was “rubbing his head,

and it looked like he was having maybe some second thoughts,” and he said that he decided to charge

the defendant when he received a report from “Our Kids” clinic that A.M.’s physical examination

supported her allegations of rape. The detective admitted that the Defendant said he had a migraine

around the same time he began rubbing his head. Detective Warf said that, when he interviewed

A.M. on August 6, he did not take notes. He did not recall whether A.M. told him that she took a

shower after the incident, and he explained that the initial incident report was filed by Deputy David

Crim, the first officer to arrive on the scene of the incident. He testified that he filed a supplemental

report. He acknowledged that he reported that A.M. was upset when he interviewed her and that she

was “concerned that her parents were going to be upset with her.”

Hunter Greene testified that he works for the TBI crime lab in the serology and

deoxyribonucleic acid (“DNA”) analysis section. Greene said that he received eleven items of

evidence to process for this case: A.M.’s blood sample; a vaginal swab from A.M.’s rape kit; A.M.’s

panties; the Defendant’s blood sample; A.M.’s shorts; A.M.’s shirt; A.M.’s bra; and the Defendant’s

bedding, including pillowcases, a flat and a fitted sheet, and a comforter. Greene testified that he

found semen, but not spermatozoa, on the panties, and he explained that he was unable to obtain a

DNA profile because the DNA sample was degraded and insufficient in amount. He testified that

semen was only located in one area on the bottom bed sheet, at one end of the sheet over to one side.

He said that his tests revealed semen, but not spermatozoa, on the bottom bed sheet, and the sample

was a mixture of DNA from three different individuals. He explained that he positively identified

the Defendant as one of the three contributors. He further explained that he could not positively

identify A.M. as a contributor, but he could not exclude her either. Greene testified that his

examination did not reveal semen or spermatozoa on the vaginal swab, and he said that he would not

expect semen to be found on the vaginal swab if the ejaculation occurred outside of the female’s

body. He affirmed that the presence of semen inside her underwear, but not inside her vagina, could

occur if the ejaculation occurred during the male’s removal from the female.

On cross-examination, Greene reiterated that he found semen, but not spermatozoa, on the

bed sheet. He explained that many factors could cause sperm to be absent from semen, including

a male’s low sperm count and environmental or bacterial degradation. He said that degradation

could occur within days or take a few weeks, depending on the environmental conditions. Greene

testified that, although A.M. was a possible contributor of the unidentifiable DNA samples taken

from the bed sheet, he could not statistically estimate the likelihood of that possibility. He said that

there is no way to determine if the DNA in mixed samples were deposited simultaneously. He

agreed that the life span of DNA has not been precisely determined. Greene testified that he did not

specifically look for, and did not locate, any pubic hair or other materials on the evidence. He said

that the semen found in the underwear was located on the inside rear of the crotch area of the panties.

He reiterated that he was unable to obtain enough cellular material for a sufficiently identifiable

DNA profile because the semen found in the underwear was insufficient, either in the quantity or the

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quality of the sample. Greene acknowledged that his report stated that the sample found on the bed

sheet contained the DNA of “two or more individuals,” and not “three individuals.” He admitted

that the other contributors could have been anyone who had access to the bed sheet.

Julie Rosof-Williams testified that she is a nurse practitioner employed by Vanderbilt

University and has worked at the Our Kids Clinic in Nashville for thirteen years. She explained that

Our Kids Clinic evaluates children alleged to be victims of sexual abuse. Rosof-Williams said that

she conducted a medical examination of A.M. on August 6, 2002. She explained that, in her

evaluation, she relies on a patient’s medical history, and she said that Lisa Dupree, a clinical social

worker who is trained in interviewing children, took A.M.’s medical history at the clinic. Included

in this medical history is an account of A.M.’s allegations of rape by the Defendant. According to

the report, A.M. stated that she went to the Defendant’s house to get a dress back from his wife.

A.M. reported that “she was going up the steps, and she felt [the Defendant] behind her, touching

her on her butt.” A.M. said that the Defendant forced her onto the bed, touched her chest and

removed her clothes. Additionally, the report states, “[A.M.] describes that [the Defendant] put his

penis in her vagina. She reports that the contact was painful, but she did not see any bleeding.

[A.M.] stated that he did not put anything on his penis, and she does not think he ejaculated.”

Rosof-Williams testified that her examination of A.M. revealed a bruise on A.M.’s hymenal

tissue. She said that the location of the bruise was consistent with injury to the genital area and

penetration, and the reddish-purple color of the bruise indicated that it occurred within the preceding

72 hours. Additionally, Rosof-Williams observed that, on slides made during the exam, A.M. had

“an abrasion to her fossa navicularis, a structure inside the genital opening but external to the

hymenal surface,” which also appeared to have occurred within the preceding 72 hours. She

explained that the abrasion could have been caused by sexual contact, a self-inflicted injury, or an

iatrogenic injury, caused by the examination. Based on A.M.’s reported medical history,

Rosof-Williams concluded that the injury was caused by sexual penetration, but she could not be

certain. She testified that she did not find any sperm present in the vagina, but she was unable to

ascertain the presence of semen.

On cross-examination, Rosof-Williams explained that the bruise on the hymenal tissue was

not large, but she explained the hymenal area is small, and the bruise was larger than a pinpoint

bruise. She said that she could not determine whether the abrasion to the fossa navicularis area was

caused by consensual or non-consensual sexual contact. She did not observe any visible signs of

force or violence. Rosof-Williams explained that the fossa navicularis is a delicate area, and the

abrasion to that area could have resulted from A.M. scratching the area. She further explained that

the abrasion could have been an iatrogenic injury, or an injury caused during the examination itself.

She admitted that she would generally expect to see more injury to the genital region following the

rape of a thirteen year old girl by an adult man, but she explained that the degree of injury would

vary from one person to the next depending on vaginal secretions, hymenal tissue elasticity, and

various other factors. Rosof-Williams said that it was possible to cause a hymenal bruise, like that

observed on A.M., during a gynecological exam, but she explained that she did not do anything

during her examination of A.M. that would cause that kind of injury. She did not observe any

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external evidence of semen during her examination.

Deputy David Crim, a deputy with the Rutherford County Sheriff’s Department, testified that

he was the first officer to arrive at A.M.’s house. He recalled that, when he arrived, A.M. was

“whimpering and crying,” and, when he entered the house, “she collapsed onto the floor and began

to scream and cry . . . .” He said that he calmed A.M. enough to question her about the incident, but

he said that she continued to be upset, and he had to ask questions and “draw the information out of

her.” Deputy Crim recalled that A.M. told him that she went upstairs in the Defendant’s house, and

the Defendant grabbed her from behind and forced her into a bedroom or living room. He said that

A.M. stated that the Defendant had sexually assaulted her, and, upon further questioning, she told

the deputy that the Defendant had raped her.

II. The Defendant’s Videotaped Statement

At the beginning of the Defendant’s trial, in a jury out conference, the State and the defense

announced an agreement by which certain portions of the videotaped statements, from the victim and

the Defendant, would not be admitted into evidence. Both parties agreed that the videotapes should

be redacted to exclude any evidence of whether the Defendant took a lie detector test and to exclude

the Defendant’s statements about the victim’s character. Although defense counsel had not seen the

redacted videotapes, the State confirmed that the agreed portions had been deleted.

Preceding one of the multiple breaks caused by editing the videotape, the statement “Would

you be willing to take a lie de…” is audible. At another point in the videotape, the tape is spliced

in such a way that the editing created a sound anomaly that sounds as if the Defendant states, “She

is known to be a whore.” Between the words “she is known to be a” and what sounds like the word

“whore,” the videotape “skips,” and the Defendant changes his physical position.

After the Defendant’s videotaped statement was played for the jury, the Defendant’s counsel

asked for a break in the proceedings, which the trial court granted, after allowing the State “one or

two more questions.” During the recess, in a jury out conference, the defense requested a mistrial

based on the audible statement, “Would you be willing to take a lie de . . . .” When the trial court

denied the Defendant’s motion for a mistrial, the following exchange took place:

The Court: Because lie detector, if it was done that way, listen I’m not going to allow

a mistrial because y’all have agreed that this was redacted . . . correctly. . . . And I

heard lie, but I didn’t hear detector. And I don’t know that any juror – I think that if

I call their attention to it and say that you may have heard --

[Defense Counsel]: Will cause more harm than good.

The Court: Yes, will cause more harm. Because the lie detector test is not

admissible, and I don’t think we need to get into the reasons for it not being

admissible.

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[Defense Counsel]: No.

The Court: Even if he’d asked him about it, we don’t tell them he did take it, we

don’t tell them he didn’t take it. So I don’t see how there’s any harm there.

....

[Defense Counsel]: . . . Well, I would just as soon the Court not even bring that part

up because I don’t want it to stick out in their minds.

The trial court acknowledged that jurors sometimes speculate even though they are not

allowed to do so, but the court ultimately determined that the statement did not warrant a mistrial,

because, there was neither evidence whether the Defendant took a lie detector test, nor evidence of

the results of such a test.

The Defendant also requested a curative instruction regarding the anomaly that sounded like

the word “whore.” Defense counsel specifically requested that the trial court not mention the word

“whore” in its instruction. Following the jury out conference, the trial court instructed the jury as

follows:

Ladies and Gentlemen, you all have just seen the statement of [the Defendant]. And

to save time, I had some of the lengthy part of that excluded, not to keep you all from

hearing it, but just to save some time because it was much longer than what it

appeared to be.

But at times when the splice was made – we didn’t have the type of

equipment that we could zero in and get it off – there were some things said that

really sounded like something else. So don’t be concerned about anything that you

think you might have heard, especially if it was at a time when the machine was cut

off and started again, when it was spliced, so to speak.

The jury convicted the Defendant of aggravated rape, and the Defendant subsequently made

a motion for a new trial, asserting that the evidence was insufficient to support the conviction. The

trial court denied the defendant’s motion for a new trial, finding that the physical evidence,

combined with the A.M.’s testimony as a “ very credible witness,” was sufficient evidence to support

the Defendant’s conviction for aggravated rape.

III. Analysis

On appeal, the Defendant contends that: (1) the trial court erred when it failed to grant the

Defendant’s motion for a mistrial when inadmissible evidence was admitted through an inadequate

redaction of a videotaped statement; (2) the trial court erred when it failed to provide an adequate

limiting instruction to the jury regarding a videotape sound malfunction; (3) the trial court erred

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when it failed to require the State to elect the offense upon which it sought conviction; (4) the trial

court erred when it failed to grant the Defendant's motion for judgment of acquittal; and (5) the

evidence is insufficient to sustain the Defendant's conviction.

A. Failure to Order Mistrial

The Defendant contends that the trial court erred when it failed to order a mistrial because

the videotape of the Defendant’s police interview was not adequately redacted. Specifically, the

Defendant asserts that the videotape played for the jury contains a question by the police, “Would

you be willing to take a lie de . . .”, which, the Defendant asserts, presents inadmissible evidence,

both by agreement and under the Tennessee Rules of Evidence, and was, therefore, grounds for a

mistrial.2 The State counters that the Defendant has waived this issue by failing to raise it in his

motion for a new trial, and, alternatively, the trial court properly denied the Defendant’s motion for

a mistrial.

Initially we note that the Defendant has waived this issue by failing to raise it in his motion

for a new trial. See Tenn. R. App. P. 3(e). The Tennessee Rules of Appellate Procedure provide that

a ground upon which a new trial is sought which was not raised in a motion for new trial will be

treated as waived on appeal. Tenn. R. App. P. 3(e). However, were this issue not waived, the

Defendant is still not entitled to relief.

“Tennessee courts have held repeatedly that polygraph test results, testimony concerning such

results, and testimony concerning a defendant’s willingness or refusal to submit to a polygraph test

are inadmissible.” See State v. Damron, 151 S.W.3d 510, 515 (Tenn. 2004) (citing State v. Pierce,

138 S.W.3d 820, 826 (Tenn. 2004)). Polygraph evidence is not considered reliable, and, therefore,

it is irrelevant under Tennessee Rule of Evidence 402. Id. “Therefore, polygraph evidence, which

includes polygraph test results, testimony concerning such results, and testimony concerning a

defendant’s willingness or refusal to submit to a polygraph test, is not admissible.” Id. at 516.

The determination of whether to grant a mistrial rests within the sound discretion of the trial

court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994). The reviewing court should not overturn

that decision absent an abuse of discretion. State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002). “The

purpose for declaring a mistrial is to correct damage done to the judicial process when some event

has occurred which precludes an impartial verdict.” State v. Williams, 929 S.W.2d 385, 388 (Tenn.

Crim. App. 1996). A trial court should grant a mistrial only when it is of “manifest necessity.” Id.;

Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). “In other words, a mistrial is an

appropriate remedy when a trial cannot continue, or a miscarriage of justice would result if it did.”

State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000) (citing State v. McPherson, 882 S.W.2d

365, 370 (Tenn. Crim. App. 1994)). The burden of establishing the necessity for mistrial lies with

the party seeking it. Williams, 929 S.W.2d at 388. No abstract formula should be mechanically

2

W e note that the lie detection test was not a polygraph, but a voice stress analysis test. However, for the

purposes of our review and analysis in this case, the type of test is not at issue.

8

applied in making this determination, and all circumstances should be taken into account. State v.

Mounce, 859 S.W.2d 319, 322 (Tenn. 1993).

In the case under submission, the jury heard a partial statement that could indicate that the

police asked the Defendant if he was willing to take a lie detector test. There was no indication of

the Defendant’s answer, or the results of any such test. Additionally, it appears from the record that

the trial court was willing to give the jury a curative instruction on this matter, and the Defendant

declined. The trial court did instruct the jury, as discussed below, to ignore anything the jury

“think[s] they heard” where the tape was edited, and we conclude that this instruction would have

helped prevent the jury’s possible speculation. Additionally, although, as the Defendant correctly

asserts, the case largely hinged on the comparable credibility of the Defendant and A.M., it was not

entirely a case of “he said, she said.” The Defendant’s DNA matched the DNA from semen found

on the Defendant’s bed sheet, approximately in the location where A.M. testified that the rape

occurred. DNA from an additional person was found mixed with the Defendant’s DNA, and A.M.

could not be excluded as the contributor of this DNA. Although the donor was unidentifiable, semen

was found in A.M.’s underwear, and A.M. had a bruise on her hymenal tissue that was consistent

with sexual penetration. Under these aforementioned circumstances, we cannot conclude that the

trial court abused its discretion when it concluded that the partial statement heard by the jury created

the “manifest necessity” for a mistrial.

B. Adequacy of Limiting Instruction

Next, the Defendant contends that the trial court erred by giving an inadequate limiting

instruction to the jury regarding a sound anomaly on the videotape of the Defendant’s police

interview. Specifically, the Defendant asserts that the videotape splicing and editing caused the

creation of an anomaly that sounded as if the Defendant called the victim a “whore,” and the trial

court’s subsequent instruction to the jury did not adequately address this anomaly. Further, the

Defendant contends that the anomaly produced constitutes gross negligence by the State, and, as

such, is analogous to prosecutorial misconduct, thereby requiring the trial court to grant a mistrial.

The State counters that the Defendant has waived this issue by failing to raise it in his motion for a

new trial, and, alternatively, the trial court provided an adequate curative instruction to the jury.

Again, we note that the Defendant has waived this issue by failing to raise it in his motion

for a new trial. See Tenn. R. App. P. 3(e). However, were this issue not waived, the Defendant is

still not entitled to relief.

We conclude that the trial court’s instruction adequately addressed the sound anomaly on the

videotape. The Defendant requested an instruction that addressed the anomaly without using the

word “whore” or drawing unnecessary attention to the anomaly. The trial court explained that the

tape’s edits and splices created sounds that “may have sounded like something else.” The trial court

instructed the jury to ignore anything they thought they “might have heard.” Thus, the trial court

instructed the jury, as the Defendant requested, that the Defendant did not say what it sounded like

he said, and the trial court did so without repeating the epithet or focusing undue attention on it. The

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jury is presumed to follow the trial court’s instructions. State v. Walker, 910 S.W.2d 381, 397

(Tenn. 1995). Accordingly, we conclude that the trial court’s instruction was adequate.

C. Election of Offenses

The Defendant next contends that the trial court erred when it failed to require the State to

elect the offense upon which it sought conviction. The Defendant asserts that the digital and penile

penetrations were two separate offenses, and the State was required to elect one of these offenses

upon which to seek a conviction for aggravated rape.3 The State counters that the trial court did not

err because the two forms of penetration constituted one criminal offense, and, as such, the

unanimity of the verdict cannot reasonably be questioned.

The Tennessee Supreme 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.” State v. Johnson, 53 S.W.3d

628, 630 (Tenn. 2001) (citing 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)).

A jury’s verdict is not unanimous when the jurors find the same elements of a particular crime based

on different facts and offenses; the jurors must “deliberate and render a verdict based on the same

evidence.” See Johnson, 53 S.W.3d at 631.

“There should be no question that the unanimity of twelve jurors is required in criminal cases

under our state constitution.” State v. Brown, 823 S.W.2d 576, 583 (Tenn. Crim. App. 1991). The

Tennessee Supreme Court explained that “‘[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.’” Kendrick, 38 S.W.3d at 568 (quoting Shelton, 851 S.W.2d at 137). The requirement of

election and a jury unanimity instruction exists even though the defendant has not requested them.

Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973). Failure to elect offenses when the proof so

requires constitutes plain error and will result in a reversal of the conviction, unless it is harmless

beyond a reasonable doubt. See State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000).

In the context of aggravated rape, “sexual penetration” is defined as “sexual intercourse,

3

Following the close of proof, the following exchange took place with regard to an election of offenses:

[The State]: Your Honor, I’m not sure if we need to make an election since there

were two types of penetration.

The Court: I don’t think you have to. All you have to do is penetrate. It doesn’t

say how or what you penetrate with.

[Defense Counsel]: And it’s only a one count indictment, so I don’t think it’s an

issue.

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cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s

body or of an object into the genital or anal openings of the victim’s, the defendant’s, or any other

person’s body.” Tenn. Code. Ann. § 39-13-501(7) (2003). Although “each act of intercourse

constitutes a distinct and separate offense,” rape may be a continuous offense if the “separate acts

of intercourse are so closely related as to constitute one criminal offense.” State v. Phillips, 924

S.W.2d 662, 664 (Tenn. 1996). When determining if separate sexual penetrations constitute a

singular offense, our Supreme Court suggested consideration of the following five factors: (1) the

nature of the act; (2) the area of the victim’s body invaded; (3) the time elapsed between the acts;

(4) the defendant’s intent; and (5) the cumulative punishment. Id.

In State v. Adrian Arnett, No. 03C01-9811-CR-00395, 2000 WL 122222, at *7 (Tenn. Crim.

App., at Knoxville, Feb. 2, 2000), aff’d on other grounds 49 S.W.3d 250 (Tenn. 2001), this Court

used the factors suggested in Phillips and held that a digital and a penile penetration could be one

criminal offense. In Arnett, after the Defendant unsuccessfully attempted penile penetration, “[h]e

used his finger, and then he tried again and put his penis inside of [the victim] then.” Arnett, 2000

WL 122222, at *7. In concluding that the digital and penile penetrations were so closely related that

they constituted a single continuous offense, this Court found that both penetrations were to the same

area, only seconds apart, and the digital penetration was merely to facilitate the penile penetration.

Thus, this Court concluded, the second penetration did not result from a “newly formed intent.” Id.

Similarly, in the case under submission, both penetrations, digital and penile, invaded the

same area of the victim’s body. Further, the victim’s testimony here, like the testimony in Arnett,

indicates that the digital penetration was brief, and immediately followed by penile penetration.

Moreover, like in Arnett, there is no evidence that the penile penetration was the result of a “newly

formed intent to seek sexual gratification or inflict abuse.” Id.; Phillips, 924 S.W.2d at 665. Thus,

we conclude that the Defendant’s digital penetration of the victim was the means to an end, a

facilitation of the intended penile penetration. Accordingly, we find that an election of offenses was

not required in this case.

D. Judgment of Acquittal and Sufficiency of the Evidence

In his final two contentions, the Defendant asserts that the trial court erred when it failed to

grant the Defendant’s motion for judgment of acquittal, and that the evidence is insufficient to

sustain his conviction. Specifically, the Defendant asserts that the victim’s testimony is not credible

and there is insufficient evidence of bodily harm. The State counters that the trial court did not err,

and the evidence is legally sufficient to support the Defendant’s convictions. As these two issues

are materially the same, we will address them both as one.

When a trial court considers a motion for judgment of acquittal, its sole inquiry is whether

the convicting evidence is legally sufficient. State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim.

App. 1995). The court may not weigh the evidence in reaching its determination. Id. An appellate

court must apply this same standard when reviewing the denial of a motion for judgment of acquittal.

Id.

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When an accused challenges the sufficiency of the evidence, an appellate court’s standard

of review is whether, after considering the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Duncan, 698

S.W.2d 63, 67 (Tenn. 1985). This rule applies to findings of guilt based upon direct evidence,

circumstantial evidence, or a combination of both direct and circumstantial evidence. State v.

Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate

the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this

Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,

995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions

concerning the credibility of the witnesses, the weight and value of the evidence, as well as all

factual issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859.

This Court must afford the State of Tennessee the strongest legitimate view of the evidence

contained in the record, as well as all reasonable inferences which may be drawn from the evidence.

State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant

removes the presumption of innocence and raises a presumption of guilt, the convicted criminal

defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty

verdict. Id.

“Aggravated rape is the unlawful sexual penetration of a victim by the defendant or the

defendant by a victim [where] . . . the defendant causes bodily injury to the victim . . . .” Tenn. Code

Ann. §§ 39-13-502(a)(2). “‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal

intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object

into the genital or anal openings of the victim’s, the defendant’s, or any other person’s body, but

emission of semen is not required.” Tenn. Code Ann. § 39-13-501(7). Thus, to support a conviction

for aggravated rape, the State was required to prove that the Defendant unlawfully sexually

penetrated A.M., that the Defendant’s actions caused bodily injury to A.M., and that the Defendant

acted intentionally, willfully, or recklessly.

Viewing the evidence in the light most favorable to the State, and allowing all reasonable

inferences in its favor, the evidence is sufficient to support the Defendant’s conviction for aggravated

rape. The evidence showed that the Defendant, an adult male, was the victim’s neighbor and the

father of the victim’s sibling’s playmates. A.M. went into the Defendant’s house, with his

permission, to retrieve an article of clothing she lent to the Defendant’s wife, and the Defendant then

picked her up, placed her on the bed and began to touch her chest. The Defendant then removed the

victim’s clothes and penetrated her vagina, first digitally, then with his penis. Semen was found

inside A.M.’s underwear. The Defendant’s DNA was matched to DNA taken from semen found on

the Defendant’s bed sheet, approximately in the location where the victim said the rape occurred.

Although the Defendant claims that A.M.’s testimony is not credible, the credibility of witnesses,

and the weight and value of evidence, is within the province of the jury. See Liakas, 286 S.W.2d at

859. There was evidence that A.M. suffered bodily injury as a result of the sexual penetration. A.M.

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testified that both the digital penetration and the penile penetration “hurt,” and she said “ow.” There

was a bruise on A.M.’s hymenal tissue, which is consistent with sexual penetration. Further, A.M.

had a laceration in her genital area that could have been caused by sexual contact.

We cannot say that, based on this evidence, a rational jury could not find the essential

elements of the charged offense beyond a reasonable doubt. Accordingly, we conclude that the trial

court properly denied the Defendant’s motion for judgment of acquittal and that the evidence is

sufficient to sustain the Defendant’s conviction for aggravated rape.

IV. Conclusion

In accordance with the foregoing reasoning and authorities, the judgment of the trial court

is affirmed.

___________________________________

ROBERT W. WEDEMEYER, JUDGE

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