Can the state convict someone of continuously sexually abusing a child even if the jury can't agree on which specific incidents happened?

Subject

Opinion No. 13-35, Proposed Criminal Offense of Continuous Sexual Abuse of a Child, April 29, 2013

Plain-English summary

HB1293 (the "Child Protection Act") would have created a new criminal offense, "continuous sexual abuse of a child," to prosecute predators who commit multiple acts of sexual abuse against one or more children over a defined time period. The bill addressed three constitutional questions:

1. Jury unanimity. Tennessee requires unanimity of 12 jurors in criminal cases under Tenn. Const. art. I, § 6. State v. Brown, 823 S.W.2d 576 (Tenn. Crim. App. 1991). A jury can't deliver a "patchwork verdict" based on different offenses. Brown. But Tennessee 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." State v. Adams, 24 S.W.3d 289 (Tenn. 2000). For continuing offenses (telephone harassment, stalking), the state need not elect specific predicate acts. State v. Hoxie, 963 S.W.2d 737 (Tenn. 1998). The U.S. Supreme Court in Richardson v. United States, 526 U.S. 813 (1999), held that for the federal continuing criminal enterprise offense, jurors must agree on the predicate acts. But the Court distinguished "state statutes making criminal such crimes as sexual abuse of a minor" because of "special difficulties of proving individual underlying criminal acts." HB1293 would be defensible: the predicate acts are an element of the continuing offense, and the bill treats them as a course of conduct. So long as the jury unanimously found that the defendant committed the requisite number of acts over the necessary time period, jurors didn't have to agree on which specific incidents qualified. Other state appellate courts (Arizona, New Hampshire, Texas, Wisconsin) have upheld similar statutes under Richardson's analysis.

2. Venue. The Tennessee Constitution gives criminal defendants the right to a jury trial in the county of commission. Tenn. Const. art. I, § 9; State v. Young, 196 S.W.3d 85 (Tenn. 2006). For the continuous-abuse charge itself, venue would be proper in any county where any element occurred, under Tenn. R. Crim. P. 18(b). But the amended HB1293 also let the jury convict for individual incidents charged as separate violations, even if those individual incidents took place entirely in another county. That violates Article I, Section 9. The original HB1293 had restricted separate-incident charging to incidents "committed within the county in which the charges are filed"; the amendment dropped that restriction, creating the constitutional problem.

3. Ex post facto. Both the federal and Tennessee constitutions prohibit ex post facto laws (U.S. Const. art. I, § 10, cl. 1; Tenn. Const. art. I, § 11). HB1293 required at least one of the predicate sexual abuse incidents to occur on or after the bill's effective date. Because the offense was a continuing one, applying it to conduct that began before but continued after the effective date didn't violate the ex post facto prohibition. United States v. Harris, 79 F.3d 223 (2d Cir. 1996); Agee v. State, 111 S.W.3d 571 (Tenn. Crim. App. 2003).

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

HB1293 was not enacted in the 1st Session of the 108th General Assembly. Tennessee subsequently enacted other continuing-sexual-abuse legislation; verify current law against current Tennessee Code provisions. The jury unanimity doctrine, venue rules, and ex post facto framework remain stable.

Background and statutory framework

HB1293 (the Child Protection Act). Would have added a new offense at Tenn. Code Ann. § 39-13-533: continuous sexual abuse of a child. The amended bill required:

• A person engaged in multiple acts of sexual abuse of one or more children
• Over a defined period of time
• Including at least one act after the effective date (July 1, 2013)

The bill set penalties, defined how the elements were noticed to court and defendant, identified the elements requiring jury unanimous agreement, and altered release eligibility. § 3 of HB1293 modified release eligibility for those convicted.

Jury unanimity. Tennessee requires 12 unanimous jurors. State v. Brown (Crim. App. 1991), citing State v. Brown (Tenn. 1988) and Tenn. Const. art. I, § 6. The "patchwork verdict" rule: jurors can't have different conduct in mind when convicting on a single count. Brown (Crim. App. 1991), quoting United States v. Duncan, 850 F.2d 1104 (6th Cir. 1988).

But Tennessee doesn't require jurors to agree on the underlying facts of an element, only on the element. State v. Adams. Different jurors can rely on different acts supporting the same element. The line, per State v. Brown (Crim. App. 1991) quoting United States v. Gipson: unanimity is required when the evidence falls into "distinct conceptual groupings" that each constitute a crime under the same count.

For continuing offenses, the analysis differs. A continuing offense by its nature is composed of multiple discrete acts that together constitute a single ongoing course of conduct. State v. Hoxie held that "when the only offense charged requires proof of a continuous course of conduct, the election requirement does not apply." Telephone harassment and stalking are paradigm examples. The test, per State v. Adams and State v. Legg: the statute must, by its terms or by the nature of the crime, treat the offense as a continuing one.

Richardson and its progeny. Richardson v. United States, 526 U.S. 813 (1999), required jury unanimity on specific violations for the federal continuing criminal enterprise offense. But Richardson distinguished state child-sexual-abuse statutes. After Richardson, several state courts have upheld continuous-sexual-abuse statutes: State v. Ramsey (Ariz. 2005); State v. Sleeper (N.H. 2004); Martin v. State (Tex. App. 2011); State v. Johnson (Wis. 2001). One outlier: State v. Rabbago (Haw. 2003), which Hawaii then overrode by constitutional amendment. The general line: where the legislature has explicitly characterized the offense as a continuing one and the predicate acts are an element rather than a separately chargeable offense, unanimity is required on the element (the requisite number of acts within the time frame), not the specific predicate acts.

Venue. Tenn. Const. art. I, § 9 (defendant's right to a jury trial in the county of commission). Tenn. R. Crim. P. 18(b): when different elements of the same offense are committed in different counties, the offense may be prosecuted in either county. For continuous abuse, if some acts occurred in County A and some in County B, prosecution in either is fine. But if the bill also allowed conviction for separate individual incidents that took place entirely outside the trial county, that wouldn't fit the "elements in different counties" rule. The amendment that removed the "committed within the county" restriction created an as-applied constitutional problem.

Ex post facto. Continuing offenses don't violate ex post facto as long as at least part of the conduct occurred after the effective date. Harris; Torres; Agee. HB1293 explicitly required one predicate act after July 1, 2013, which would have satisfied this doctrine.

Common questions

How does this offense differ from individual sexual abuse charges?

Individual offenses charge each specific incident as a separate violation. Continuous sexual abuse aggregates the pattern into a single count, with the predicate acts as elements rather than separate charges. This lets prosecutors charge based on a pattern of conduct without having to prove each individual incident with the specificity required for separate charges (which is often impossible with very young victims who can't remember dates of specific incidents).

What if the jury splits on which incidents happened?

For the continuous-abuse count, that's not a problem. So long as the jury unanimously agrees that the defendant committed the requisite number of acts over the necessary period, jurors can disagree on which specific incidents qualify. The element is "engaged in continuous sexual abuse," not "engaged in incident #3 on date X."

Could prosecutors charge both continuous abuse and individual incidents?

The opinion suggests caution. For the continuous-abuse count itself, unanimity on predicate acts isn't required. But if the prosecution also charges separate counts for specific predicate incidents (rape of a child, aggravated sexual battery, etc.), then unanimity is required for those separate counts, because each is a discrete offense. Brown (Crim. App. 1991).

What was the venue problem?

The amended bill allowed conviction in one county for individual incidents that took place entirely in another county. Under Article I, Section 9 and Rule 18(b), Tennessee allows split-county venue only when elements of the same offense occurred in both counties. An individual offense that occurred entirely in County B can't be tried in County A. The amendment's removal of the county-of-charging restriction created this constitutional problem.

Why isn't this an ex post facto problem?

Because HB1293 required at least one predicate act after the effective date. A continuing offense can include some pre-effective-date conduct without violating ex post facto, as long as the conduct continued into the post-effective-date period. Harris; Agee. The crime is "completed" only with the final act, which by HB1293's terms had to be after July 1, 2013.

Citations

Tennessee Constitution: art. I, § 6 (jury unanimity); art. I, § 9 (venue); art. I, § 11 (ex post facto). U.S. Const. art. I, § 10, cl. 1 (ex post facto). Tenn. R. Crim. P. 18(b) (venue). Tennessee cases: State v. Brown, 823 S.W.2d 576 (Tenn. Crim. App. 1991); State v. Brown, 762 S.W.2d 135 (Tenn. 1988); State v. Adams, 24 S.W.3d 289 (Tenn. 2000); State v. Johnson, 53 S.W.3d 628 (Tenn. 2001); State v. Hoxie, 963 S.W.2d 737 (Tenn. 1998); State v. Legg, 9 S.W.3d 111 (Tenn. 1999); State v. Young, 196 S.W.3d 85 (Tenn. 2006); Miller v. State, 584 S.W.2d 758 (Tenn. 1979); Agee v. State, 111 S.W.3d 571 (Tenn. Crim. App. 2003). Federal cases: Richardson v. United States, 526 U.S. 813 (1999); United States v. Duncan, 850 F.2d 1104 (6th Cir. 1988); United States v. Gipson, 553 F.2d 453 (5th Cir. 1977); United States v. Harris, 79 F.3d 223 (2d Cir. 1996); United States v. Torres, 901 F.2d 205 (2d Cir. 1990). Other states: State v. Ramsey, 124 P.3d 756 (Ariz. Ct. App. 2005); State v. Sleeper, 846 A.2d 545 (N.H. 2004); Martin v. State, 335 S.W.3d 867 (Tex. App. 2011); State v. Johnson, 627 N.W.2d 455 (Wis. 2001); State v. Rabbago, 81 P.3d 1151 (Haw. 2003) (superseded by constitutional amendment).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-035.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

April 29, 2013

Opinion No. 13-35

Proposed Criminal Offense of Continuous Sexual Abuse of a Child

QUESTIONS

1. Would a conviction under House Bill 1293/Senate Bill 1362, 108th General Assembly, 1st Session (2013), as amended by House Criminal Justice Committee Amendment No. 1 and Senate Judiciary Committee Amendment No. 1 (hereinafter "HB1293"), which creates the criminal offense of "continuous sexual abuse of a child," be defensible where a jury is not unanimous as to what acts constitute the elements of the offense but is unanimous in determining that the requisite number of acts took place?

2. If enacted, would HB1293 constitutionally enable prosecution in any county in which an element of the offense occurred?

3. Would any other provision of the Tennessee or United States Constitutions invalidate HB1293?

OPINIONS

1. Yes. While the Tennessee Constitution requires the unanimity of twelve jurors in criminal cases, it does not require that a jury unanimously agree to the facts supporting a particular element of a crime so long as the jury agrees that the defendant is guilty of the crime charged.

2. Yes. If enacted, HB1293 would allow for prosecution of the offense of continuous sexual abuse of a child in any county in which an element of the offense occurred without raising constitutional concerns. However, under HB1293 as amended, any conviction for an individual incident of sexual abuse that took place outside of the county in which the charges were filed would violate the Tennessee Constitution.

3. HB1293 is defensible against a challenge that it violates the ex post facto prohibition contained in the Tennessee and United States Constitutions. HB1293 mandates that at least one of the predicate acts of sexual abuse must take place after the effective date of the legislation. Thus, as a continuing offense, the crime would not be completed until after the date the legislation goes into effect. This Office is unaware of any other constitutional deficiency with HB1293.

ANALYSIS

HB1293, designated the "Child Protection Act," creates the crime of continuous sexual abuse of a child. Under HB1293, the criminal offense of continuous sexual abuse of a child takes place when a person engages in multiple acts of sexual abuse of one or more children over a defined period of time. HB1293, § 2 (§ 39-13-533 (a)). HB1293 establishes penalties for the commission of this crime, HB1293 § 2 (§ 39-13-533(c)), defines how notice of the elements of the crime are presented to the court and the defendant, id. (§ 39-13-533(d)), identifies the elements of the crime upon which a jury must unanimously agree, id. (§ 39-13-533(e)), and alters the release eligibility for a person convicted of the crime of continuous sexual abuse of a child, HB1293 § 3.

1. HB1293 is defensible against a claim that its provisions violate federal and Tennessee constitutional requirements for jury unanimity. Although the Fourteenth Amendment does not impose upon the states the United States Constitution's requirement of jury unanimity, "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) (citing State v. Brown, 762 S.W.2d 135, 137 (Tenn. 1988) and Tenn. Const. art. I, § 6). Thus, the jury may not render a "patchwork verdict" based upon different offenses in evidence. Id. (quoting United States v. Duncan, 850 F.2d 1104, 1110 (6th Cir. 1988)). However, Tennessee "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." State v. Adams, 24 S.W.3d 289, 297 (Tenn. 2000). "It is only when the evidence can be placed in 'distinct conceptual groupings,' of which each would constitute a crime under the same count, does the concern for unanimity arise." Brown, 823 S.W.2d at 583-84 (quoting United States v. Gipson, 553 F.2d 453, 458 (5th Cir. 1977)).

Tennessee courts have treated continuing offenses differently in the context of the unanimity requirement. That a single offense involves "numerous discrete parts does not put the defendant at risk of a non-unanimous jury verdict. . . . [W]hen the only offense charged requires proof of a continuous course of conduct, the election requirement does not apply." State v. Hoxie, 963 S.W.2d 737, 743 (Tenn. 1998). Even though continuing offenses "can be committed by multiple discrete acts over a period of time," they "generally stem from a single motivation or scheme." State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000). "An offense punishes a continuing course of conduct only when 'the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that [the legislature] must assuredly have intended that it be treated as a continuing one.'" Id. at 295 (quoting State v. Legg, 9 S.W.3d 111, 116 (Tenn. 1999)).

In Richardson v. United States, 526 U.S. 813 (1999), the United States Supreme Court held that a jury must agree unanimously about which specific violations make up the federal offense of engaging in a continuing criminal enterprise. However, in its discussion, the Court distinguished "state statutes making criminal such crimes as sexual abuse of a minor" that permit jury disagreement about the underlying incidents. Id. at 821. The Court noted that the United States Constitution does not impose a jury-unanimity requirement upon the states and that "state practice may well respond to special difficulties of proving individual underlying criminal acts, which difficulties are absent here." Since Richardson, state statutes similar to HB1293 have generally survived judicial scrutiny. See State v. Ramsey, 124 P.3d 756 (Ariz. Ct. App. 2005); State v. Sleeper, 846 A.2d 545 (N.H. 2004); Martin v. State, 335 S.W.3d 867 (Tex. App. 2011); State v. Johnson, 627 N.W.2d 455 (Wis. 2001). But see State v. Rabbago, 81 P.3d 1151 (Haw. 2003), superseded by constitutional amendment.

HB1293 merely requires that the jury unanimously find that a requisite number of acts of sexual abuse of one or more children occur within a defined time frame. Because the predicate acts of abuse serve as an element of the proposed offense and the legislation contemplates the punishment of a continuing course of conduct, the requirement of jury unanimity does not preclude a conviction where the jury does not agree as to which acts took place so long as it unanimously agrees that the defendant performed the requisite number of acts during the necessary time period.

While the scenario contemplated by HB1293 presents no unanimity problem for the offense of continuing sexual abuse of a child, a constitutional problem could arise should the jury return multiple convictions for the offenses based on the predicate acts (e.g. rape of a child, aggravated sexual battery, etc.). In that situation, a jury must agree as to which course of conduct constitutes each individual offense. See Brown, 823 S.W.2d at 583.

2. The Tennessee Constitution provides criminal defendants with the right to a jury trial in the county of the commission of the offense. Tenn. Const. art. I, § 9; State v. Young, 196 S.W.3d 85, 101 (Tenn. 2006). "[W]here different elements of the same offense are committed in different counties, 'the offense may be prosecuted in either county.'" Young, 196 S.W.3d at 102 (quoting Tenn. R. Crim. P. 18(b)). Thus, so long as any element of the offense takes place in a county, prosecution within that county is permissible.

However, HB1293 as amended may create a constitutional problem of venue for the individual incidents of sexual abuse charged as separate violations. As initially proposed, HB1293 allowed the State to charge separately only the individual incidents of abuse "committed within the county in which the charges are filed." HB1293 as originally filed, § 2 (§ 39-13-533(g)). HB1293 as amended removes this language and thus allows the jury to return a conviction for an individual incident of sexual abuse for which no element took place in the county where the charges were filed. HB1293, § 2 (§ 39-13-533(f)). Any conviction for an offense that took place entirely in a county other than the one in which the offense was charged would violate Article I, Section 9 of the Tennessee Constitution.

3. The proposed legislation requires that one of the incidents of sexual abuse of a child occur on or after July 1, 2013. Both the Tennessee Constitution and the Constitution of the United States prohibit ex post facto laws. U.S. Const. art. I, § 10, cl. 1; Tenn. Const. art. 1, § 11. "It is well-settled that when a statute is concerned with a continuing offense, 'the Ex Post Facto clause is not violated by application of a statute to an enterprise that began prior to, but continued after, the effective date of [the statute].'" United States v. Harris, 79 F.3d 223 (2d Cir. 1996) (quoting United States v. Torres, 901 F.2d 205, 226 (2d Cir. 1990)); see also Agee v. State, 111 S.W.3d 571 (Tenn. Crim. App. 2003). Because HB1293 requires that one of the incidents of sexual abuse occur on or after the effective date of the legislation, it is defensible against ex post facto claims.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

BENJAMIN A. BALL
Assistant Attorney General

Requested by:
The Honorable Tony Shipley
State Representative
114 War Memorial Building
Nashville, Tennessee 37243-0122

James W. Kirby
Executive Director
Tennessee District Attorneys General Conference
226 Capitol Boulevard, Suite 800
Nashville, Tennessee 37243-0890