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Posted by: Amelia Ferrell Knisely on Jan 28, 2016

Court: TN Supreme Court

Attorneys 1:

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Rachel E. Willis, Lead Senior Counsel; James E. Gaylord, Senior Counsel; Mike Dunavant, District Attorney General; Joe Van Dyke and Katie Walsh, Assistant District Attorneys General, for the appellant, State of Tennessee.

Attorneys 2:

Andrea Sipes Lester (on appeal), Jackson, Tennessee, and David A. Stowers (at trial), Bolivar, Tennessee, for the appellee, Jimmy Dale Qualls.

Judge(s): CLARK

The dispositive issue in this appeal is whether the election of offenses doctrine, articulated in Burlison v. State, 501 S.W.2d 801 (Tenn. 1973), and reaffirmed in State v. Shelton, 851 S.W.2d 134 (Tenn. 1993), requires the prosecution to identify a single incident of sexual battery in cases, such as this one, where the child victim testifies to repeated incidents of sexual contact occurring over a substantial period of time but does not furnish any specific details, dates, or distinguishing characteristics as to individual incidents of sexual battery. We hold, as have courts in other jurisdictions, that where a prosecution is based on such nonspecific or “generic” evidence, requiring the prosecution to elect a single specific incident is not possible. However, to prevent infringement upon the defendant?s right to a unanimous verdict, the trial court must give a modified unanimity instruction which informs the jury that it must unanimously agree the defendant committed all the acts described by the victim in order to convict the defendant. Although the trial court did not have the benefit of this decision and therefore did not provide the modified unanimity instruction to the jury in this case, we conclude, based on the record in this appeal, that the omission of this instruction was harmless beyond a reasonable doubt. Accordingly, we reverse the Court of Criminal Appeals? judgment vacating the defendant?s convictions of sexual battery by an authority figure and reinstate the trial court?s judgment approving the jury?s verdict.