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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
Assigned on Briefs February 5, 2013 STATE OF TENNESSEE v. MICHAEL MARKS
Appeal from the Criminal Court for Shelby County No. 10-07558 James M. Lammey, Jr., Judge

No. W2012-00564-CCA-R3-CD - Filed May 3, 2013

The defendant, Michael Marks, was convicted by a Shelby County Criminal Court jury of rape of a child, a Class A felony, and was sentenced by the trial court to twenty-five years at 100% as a child rapist. He raises the following issues on appeal: (1) whether the trial court erred by not requiring the State to make an election of offenses at the close of its casein-chief; (2) whether the trial court erred by not requiring the State to make an election before the case was submitted to the jury; (3) whether the trial court erred by issuing a supplemental instruction on the election of offenses after the jury had already begun its deliberations; and (4) whether the evidence is sufficient to sustain the conviction. Following our review, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed A LAN E. G LENN, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined. Stephen C. Bush, District Public Defender; Barry W. Kuhn (on appeal) and Jennifer Case and Michael Johnson (at trial), Assistant Public Defenders, for the appellant, Michael Marks. Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Carrie Shelton, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTS According to the State's proof at trial, on the night of May 5, 2010, the eleven-year-

old victim, L.R.,1 was visiting at the home of K.T., the mother of her ten-year-old cousin, when the defendant, who was K.T.'s boyfriend, took her to an empty bedroom, pulled down her pants and underwear, laid her on the floor, and performed oral sex on her and penetrated her vagina with his fingers. The victim immediately reported the abuse, and that same night the defendant confessed to the victim's mother and to K.T. that he had engaged in oral sex with the victim. He later gave a statement to police in which he again acknowledged oral sex but denied that he had penetrated the victim's vagina. On December 2, 2010, the Shelby County Grand Jury returned a two-count indictment charging the defendant with rape of a child and aggravated sexual battery. The State nolle prosequied the aggravated sexual battery count of the indictment, and the defendant proceeded to trial on the rape count on January 9, 2012. K.T., the defendant's ex-girlfriend, testified that on the night of May 5, 2010, she returned home from work and began taking a bath, as was her habit. The telephone rang while she was in the tub, and her oldest daughter, K.R., brought it to her in the bathroom. When she answered, she learned that the caller was a 911 dispatcher calling because someone at the residence had hung up after dialing 911. K.T. said she told the dispatcher that her children must have been playing on the phone, apologized, and hung up. She then asked K.R. why they had been playing on the telephone. K.R., who was visibly shaking, told her that they had not been playing and related what the victim had told her. K.T. then called the victim into the bathroom, who told her what had happened with the defendant while K.T. was at work. After the victim's revelation, K.T. immediately called the defendant into the bathroom and told him that the victim had accused him of touching her. She testified that the defendant initially denied it, arguing back and forth with the victim about whether the victim was lying. Eventually, however, the defendant stopped arguing and confessed to K.T. that he had done it. When she asked him what exactly he had done to the victim, he told her that he "ate her out," which K.T. interpreted as meaning that he had performed oral sex on her. K.T. testified that the defendant was profuse in his apologies and told her that he would confess to the victim's mother, who arrived at the home approximately fifteen or twenty minutes after K.T. began questioning the defendant about the victim's allegations. She said the defendant left her home that night, but she later talked to him about the situation again. In that later conversation, the defendant explained that he had taken a pill on the night in question and had not been "in his right mind." On cross-examination, K.T. acknowledged that when the victim divulged the abuse to her that night in the bathroom, she never
1

In accordance with the policy of this court, we refer to the minor victim and her relatives by their initials only.

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mentioned that the defendant had inserted his fingers into her vagina. The victim's mother testified that when she arrived at K.T.'s home, the victim came up to her car hysterically crying that she was ready to go home. She asked what was wrong, but the victim kept repeating that she wanted to go home. The defendant then came up to the side of her vehicle, and she asked him what had happened. He replied that he was "just going to go on and tell [her] the truth" and then said, "I had oral sex with your daughter." She asked, "What?" and he repeated that he had oral sex with the victim. Shocked, the victim's mother got out of the car and went into K.T.'s home, accompanied by the victim. When she got inside, K.T. told her that all she knew about the situation was what the children had just told her. The defendant, in the meantime, appeared subdued as he said, "It happened

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