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Inaccurate Election of Offenses Not Plain Error in This Case

Election of offenses in a criminal trial refers to a prosecutor's duty, in a case where there was evidence at trial of multiple separate incidents which might meet the elements of the charged offense, to elect, for each count, upon which specific incident the jury should deliberate to determine guilt of that count. The purpose of this is to protect a defendant's right to a unanimous verdict in determining whether the defendant's conduct on a specific occasion meets the elements of a particular charged offense (rather than having some jurors evaluating the events of one occasion and other jurors evaluating the events of another instead). In the recent case of State v. Knowles, W2013-00503-SC-R11-CD (Tenn. 7-31-2015), the Tennessee Supreme Court affirmed a conviction for rape of a child, despite a clearly inaccurate election of offenses.

In the Knowles case, there was evidence presented at trial of numerous acts of sexual abuse within the time frame provided in the indictment. The State, in making its election of offenses, ultimately settled on an occasion which was specific (from the trial testimony) as to date and place and in which the victim had specifically described fellatio as having occurred. Then, the trial court demanded that the State be even more fact specific in its election and specify whether it was relying upon an act of fellatio or an act of cunnilingus to establish the offense. The State specified cunnilingus, which was then also specified in the jury instructions. This was a mistake for two reasons. First, election of offenses does not require the State to elect the facts upon which it is relying (such as how the penetration was accomplished), but only to distinguish a particular incident from other incidents in evidence. Second, there was no evidence presented of cunnilingus during the particular incident the State elected. The testimony only indicated fellatio.

The defense at trial did not object to this particular election or to the trial court's instruction. Rather, the defense argued on appeal (after a jury conviction) that the evidence was not sufficient to support the particular offense elected by the State. The Court of Criminal Appeals chose to view this argument as not really an argument on sufficiency but rather a challenge to an inaccurate election of offenses. They then ruled that the election was inaccurate but harmless error.

Upon review by the state Supreme Court, the outcome was affirmed but for a different reason. The state Supreme Court noted that the defendant did not formally raise a challenge to the election of offenses, and so review of that issue was limited to 'plain error' review. They then further determined that the requirements for plain error review were not met in this case, as the inaccurate election did not really threaten the defendant's right to a unanimous verdict (and so therefore no 'substantial right of the accused' was affected). In addition, the closing arguments were not included in the record, so the Court could not determine from the available record the effect of the inaccuracy in the parties' closing arguments. Without meeting the standards for plain error review, the question was not reviewable and so the ruling of the trial court must be affirmed.

For more information on election of offenses in criminal cases, contact Hindman & Associates.

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