State v. Walton

• Decision Date: 22 December 1997
• Citation: 958 S.W.2d 724
• Parties: STATE of Tennessee, Appellee, v. David E. WALTON, Jr., Appellant.
• Court: Tennessee Supreme Court

Page 724

958 S.W.2d 724

STATE of Tennessee, Appellee, v. David E. WALTON, Jr., Appellant.

Supreme Court of Tennessee.

Dec. 22, 1997.

W. Mark Ward, Memphis, for Appellant.

John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General, Nashville, Clayburn L. Peeples, District Attorney General, Trenton, for Appellee.

OPINION

BIRCH, Justice.

We granted the application for review filed by David E. Walton, Jr., the defendant, in order to address issues pertinent to the sentences imposed. In our review, however, we notice as plain error the failure of the State to properly elect offenses, ¹ which resulted in violation of the defendant's right to jury unanimity. Accordingly, for the reasons outlined below, we reverse the convictions and vacate the sentences imposed. The cause is remanded to the trial court for further proceedings consistent with this opinion.

I

When A.W., ² the victim, was in kindergarten, the defendant, her father, began sexually abusing her. This abuse occurred when the victim was alone with the defendant while her mother was at work, and according to the victim, it happened "every single day." The victim described four specific ways the defendant abused her: (1) he made her lie on her back while he penetrated her vagina with his penis; (2) he directed her to get down on her hands and knees while he penetrated her anus with his penis; (3) he laid down and directed her to get on top of him while he penetrated her vagina with his penis; and (4) he "sucked" her "private part." She did not relate these incidents of abuse to any specific time nor did she state that they occurred in any particular order, i.e., "the first time, my father made me lie on my back...."

A physician who examined the victim testified that her hymen was intact. This finding, however, was consistent with oral penetration or slight penetration by the tip of a finger or penis. According to the physician, the victim said the defendant attempted to have intercourse with her on four occasions, fondled her and also made her commit fellatio. The victim said that her uncle had also attempted to have intercourse with her on one occasion.

Upon arrest, the defendant admitted having had "sexual relations" with the victim. He acknowledged that he had taken a shower with his daughter several months previously and had ejaculated. This was the last time he had "sexual relations" with his daughter, he said. At trial, the defendant denied that he penetrated or harmed the victim. He explained that when he gave a statement to officers, he believed that "sexual relations" included his sexual thoughts or feelings. The defendant's wife testified that the victim had accused at least one other individual of having molested her.

At the close of the proof, the State elected to proceed on one incident that occurred in January 1991 and one incident that occurred in July 1992. The jury convicted the defendant of two counts of aggravated rape, two counts of aggravated sexual battery, and two counts of incest.

II

As stated, although not raised as an issue by the parties, the Court is profoundly troubled by the manner in which the State elected the offenses. In general, this Court will not consider issues that are not raised by the parties; however, plain error is an appropriate consideration for an appellate court whether properly assigned or not. State v. Ogle, 666 S.W.2d 58, 60 (Tenn.1984); see also State v. Hoyt, 928 S.W.2d 935, 946 (Tenn.Crim.App.1995). An error affecting "the substantial rights of an accused may be noticed at any time ... where necessary to do substantial justice." Tenn. R.Crim. P. 52(b).

The State elected to proceed to verdict on a January 1991 incident and a July 1992 incident. In light of this election, the trial court instructed the jury as follows:

You remember that I want you to render six separate verdicts with regard to each count contained in the indictment. The first three counts of the indictment allege aggravated rape, aggravated sexual battery, and incest, and the State has to be specific in its pleading, and that [the State] alleges a date in January of 1991.

Counts 4, 5, and 6, once again, allege aggravated rape, aggravated kidnapping [sic, sexual battery], and incest and that alleged incident occurred in January of 1992 [sic, July of 1992]. The State was required to elect a specific incident, and those are the two that it elected to present to you.

....

There are two specific incidents. The first was in January of 1991, and the second one is in July of 1992, and those are the two specific incidents that the State has elected to present to you.

In cases such as this one where the evidence suggests that the defendant has committed many sexual offenses against a victim, the trial court must require the State to elect the particular offenses for which convictions are sought in order to ensure that the jury verdict is unanimous. State v. Shelton, 851 S.W.2d 134, 137 (Tenn.1993). This requirement is "fundamental, immediately touching the constitutional rights of an accused...." Burlison v. State, 501 S.W.2d 801, 804 (Tenn.1973). As we stated in Shelton, "the purpose of election is to ensure that each juror is considering the same occurrence. If the prosecution cannot identify an event for which to ask a conviction, then the court cannot be assured of a unanimous decision." Shelton, 851 S.W.2d at 138.

Although young children who are victims of child sexual abuse may not be able to testify that abuse occurred on a specific date, election in such cases may be satisfied by other means:

If, for example, the evidence indicates various types of abuse, the prosecution may identify a particular type of abuse and elect that offense. [Citation omitted]. Moreover, when recalling an assault, a child may be able to describe unique surroundings or circumstances that help to identify an incident. The child may be able to identify an assault with reference to a meaningful event in his or her life such as the beginning of school, a birthday, or a relative's visit. Any description that will identify the prosecuted offense for the jury is sufficient.

State v. Shelton, 851 S.W.2d at 138 (emphasis added). Simply stated, the trial court must "bear in mind that the purpose of election is to ensure that each juror is considering the same occurrence." Id. See also Tidwell v. State, 922 S.W.2d 497 (Tenn.1996)("when ... a jury is permitted to select for itself the offense on which it will convict, the court cannot be assured of jury unanimity."); State v. Brown, 762 S.W.2d 135 (Tenn.1988)(failure to elect aggravated sexual battery offense was reversible error.)

The election of incidents occurring in January 1991 and July 1992, in light of the complete absence of proof as to the dates or even the order in which the abuse occurred, failed to ensure that each juror considered the same occurrence. The State did not seek to narrow the multiple incidents by asking the victim to relate any of the incidents to a specific month, memorable occasion, or special event as required in Shelton, supra. The State also did not elect which of the numerous types of sexual acts it relied upon to establish the convictions. Rather, each juror was left to choose independently the act(s) of abuse upon which to base a verdict. This is the "grab bag" result we condemned in Tidwell v. State, 922 S.W.2d 497, 501 (Tenn.1996). We have no means here by which we can be assured that each juror relied upon the same evidence to convict the defendant. As we said in Shelton, supra,

We appreciate the difficulties involved in prosecuting cases of sexual abuse against small children. In such cases, the rules of evidence and the rules of procedure have been relaxed to some extent to accommodate very young witnesses. Nevertheless, the constitutional protections guaranteed a criminal defendant, who is presumed by the law to be innocent until proven guilty, cannot be suspended altogether because of the victim's age or relative inability to testify. In cases such as this one, the state must either limit the testimony of prosecuting witnesses to a single event, or prepare the case so that an election can be made before the matter is submitted to the jury to decide.

851 S.W.2d at 139. Thus, under the authority of Tidwell and Shelton, we reverse the defendant's convictions and remand for a new trial. ³

III

Although we need not, we elect to address two significant sentencing issues in an effort to provide guidance to the trial court upon retrial. At the outset, we note that there was no evidence introduced at the sentencing hearing by either the State or the defendant. Although the trial court refers to a presentencing report, no such report was included in the record on appeal. Because the trial court did not place in the record the findings of fact relied upon for the sentencing decisions, those decisions come to us without the presumption of correctness; our review is, therefore, de novo. State v. Jones, 883 S.W.2d 597, 600 (Tenn.1994).

The first issue concerns the applicability of the "particularly vulnerable" enhancement factor. Tenn.Code Ann. § 40-35-114(4). The trial court imposed the maximum sentence on each conviction: twenty-five years on each of the aggravated rape convictions, twelve years on each of the aggravated sexual battery convictions, and six years on each of the incest convictions. The justification for these sentences was stated by the court as follows:

I find there to be absolutely no mitigating factors whatsoever and I find there to be three statutory aggravating factors, those being stated in Tennessee Code Annotated 40-35-114, Sub 4, Sub 7 and Sub 15. Sub 4 states that the victim of the offense was particularly vulnerable because of her age. Sub 7 states that the offense involved the victim and was committed to gratify the defendant's desire for pleasure or excitement and Sub 15, the defendant abused a position of private trust in ...