In a criminal trial, where evidence is presented of multiple separate acts, any of which could satisfy the elements of a particular charge, the State is required to clarify for the jury which particular acts the State is relying upon to prove the necessary elements of a charge. This is called election of offenses. Its purpose is to help ensure a unanimous verdict on specific criminal conduct. Otherwise, there is potential for jurors to agree on guilt without agreeing on what facts establish the guilt. The election of offenses can be made simply within the prosecutor's closing argument, explaining which facts the State is relying upon for a particular charge. In the recent case of State v. Kromah, M2011-01813-CCA-R3-CD (Tenn.Crim.App. 3-1-2013), the Court of Criminal Appeals determined from the appellate record that an election had properly been made.
The Kromah case, also discussed in the last blog post here, involved allegations against a stepfather of sexual battery upon his teenage stepdaughter. Charged with multiple counts, he was convicted of a single count. One of the challenges on appeal of the conviction was that the State did not properly make an election of offenses, as there was testimony about multiple acts of fondling on different occasions. However, the Defendant did not include the closing arguments of the trial in the transcripts prepared for appeal. The Court of Criminal Appeals determined this effectively waived consideration of the issue, as the election could have been made in closing argument. Nevertheless, the Court went on to also conclude that other parts of the record, such as arguments at the motion for new trial hearing, indicated the State did make a proper election of offenses in closing argument.
As to the Defense argument that the State did not properly clarify whether they were relying upon a touching of the victim's breast or a touching of her vagina to establish the elements of the count for which the Defendant was convicted, the Court of Criminal Appeals concluded that the testimony did not describe a touching of the vagina, but only a touching of the breast in that incident. Therefore, it was clear the State was relying upon the touching of the breast to establish the offense.
For more information on election of offenses, contact Hindman & Associates.