State of Tennessee v. Jimmy Dale Qualls, 2016 Tenn. LEXIS 50

Jimmy Dale Qualls was indicted on 37 counts of sexual battery by an authority figure (and one incest count); the charges involved two daughters who testified about repeated fondling over extended periods.
Victims testified to a recurring pattern of touching (buttocks and vaginal area over clothing) across many months/years without identifying distinct dates or distinguishing details for individual incidents.
At retrial the State elected a single type of act (fondling of buttocks/vagina) and assigned one count per month per victim; the jury convicted on all 37 counts.
The Court of Criminal Appeals reversed, holding the State had not properly elected specific incidents because victim testimony was "general," and remanded for a new trial.
The Tennessee Supreme Court granted review and held that where the prosecution relies solely on "generic" evidence (repetitive, indistinguishable acts), the election doctrine may be satisfied by a modified unanimity instruction requiring the jury to unanimously find the defendant committed all acts described by the victim.
The Court found the trial court's failure to give that modified instruction constituted non‑structural constitutional error but was harmless beyond a reasonable doubt on the record and reinstated the convictions.

Issue	State's Argument	Qualls's Argument	Held
Whether the election‑of‑offenses doctrine requires the prosecution to identify a single specific incident when victims give generic, repetitive testimony	Where evidence is purely generic, the State need not elect a single incident; a modified unanimity instruction can satisfy unanimity requirements	The State must elect a particular incident for each charged count so jurors can unanimously agree on the same offense	Adopted: In purely generic evidence cases, the election requirement is satisfied by a modified unanimity instruction that convicts only if jurors unanimously find the defendant committed all acts described by the victim
Whether omission of the modified unanimity instruction was reversible error in this case	The omission was harmless beyond a reasonable doubt because victims testified to repeated similar acts, corroboration existed, and credibility was the central issue	The omission deprived Qualls of the constitutional right to a unanimous verdict and required reversal	Held harmless: The Court concluded beyond a reasonable doubt the verdict would have been the same had the modified instruction been given

Burlison v. State, 501 S.W.2d 801 (Tenn. 1973) (articulating election‑of‑offenses doctrine)
State v. Shelton, 851 S.W.2d 134 (Tenn. 1993) (reaffirming election requirement to protect unanimity)
State v. Rickman, 876 S.W.2d 824 (Tenn. 1994) (admissibility of time‑span allegations and discussion of election)
State v. Brown, 992 S.W.2d 389 (Tenn. 1999) (purposes served by election doctrine)
People v. Jones, 792 P.2d 643 (Cal. 1990) (adopting "either/or" approach and prescribing modified unanimity instruction for generic evidence)
Ex parte R.L.G., Jr., 712 So. 2d 372 (Ala. 1998) (adopting Jones approach for purely generic evidence)