delivered the opinion of the Court,
The dispositive issue in this appeal is whether the election of offenses doctrine, articulated in
Burlison v. State,
I. Factual and Procedural Background
In May 2010, the Hardeman County Grand Jury indicted Jimmy Dale Qualls (“the defendant”) for thirty-seven counts of sexual battery by an authority figure,
1
a Class C felony, -and one count of incest.
2
The alleged victims of the sexual battery charges were the defendant’s daughters, E.K.Q. and E.Q.
3
The alleged victim of the incest charge was J.S., the defendant’s adopted daughter,' whom he married in
At an initial trial on the May 2010 indictments, the jury convicted the defendant of all charges. The defendant'appealed, contending that the State had failed to make an election of offenses.
Qualls,
On January 8, 2013, the defendant was retried on thirty-seven counts of sexual battery by an 'authority figure. The State called three witnesses: E.K.Q., E.Q., and their mother, J.S.
E.K.Q., the oldest daughter, was born on September 1, 1989, and was seventeen when the sexual battery’ occurred. She lived with her parents and siblings throughout the duration of the touching, which began in January 2007, when she was a senior in: high school, and ended in August 2007, when E.K.Q. turned- eighteen. E.K.Q. said the defendant, using slang terms for the vaginal area, “would say things like, ‘Let me pinch your p-’ ” frequently, and when she and her younger sister, E.Q., got new bras, he would “feel the bras to make sure they fit correctly.” She testified that the defendant would come up behind her and E.Q. and use his finger to “fiddle” with their “butt crack[s]” and would grab her or E.Q.’s vagina, but would laugh about it,” as if it were a joke. At trial, E-K.Q. stood and demonstrated-,the defendant’s action. E.K.Q. explained the defendant “would tell [them] that it was okay for him to do it [because] he was teaching [the victims] what to not let other people do.” E.K.Q. also said that the defendant used the bathroom when she and E.Q. showered and remained in the bathroom, watching them as .they dried off, again stating that his being there was acceptable because he was their father.
- E.K.Q. explained that she followed the defendant’s instructions because he kept a “whooping” stick and -had- previously choked, punched, and “stomped” her when she had disobeyed, him. When asked why her mother had not stopped -the defendant from staying in the bathroom while she and her sister showered, E.K.Q. explained that- when, her mother had previously tried to stop the defendant, he had choked, slapped, and kicked her mother. E.K.Q. left the family home in' May 2009 and moved in with’ her maternal aunt
5
in Arkansas. , E.K.Q. told her aunt about the
When asked what type of sexual abuse occurred most frequently, E.K.Q. replied, It would be, like, butt grabbing or the fiddling — I mean, it all kind of was altogether — and the pinching the p-.” She agreed the “butt grabbing” and fondling of the vaginal area were “done in concert with each other.” During her direct examination, E.K.Q. answered in the affirmative when asked if the defendant fondled her in that manner once each month:
[State]: So, [E.KQ.], we’re talking about — we’ve previously talked-about all the different types of sexual contact that your father had with you; right?
[E.KQ.]: Yes, ma’am,
[State]: And I’m toying to get to the specific — specific instances that it happened and what month they happened in so I’m going to be as specific as I can so if I’m asking a confusing question, feel free to ask me to rephrasé it.
[E.KQ.]: Yes, ma’am.
[State]: Between January 1, 2007, and January 30, 2007, did your father, [the defendant], fondle your buttocks and vagina at your home in Hardeman County, Tennessee?
[E.KQ.]: Yes, ma’am.
[State]: And between February 1, 2007, and February 27, 2007, did your father, [the defendant], fondle your buttocks and vagina at your house in Hardeman County, Tennessee?
[E.KQ.]: Yes, ma’arti.
By the close of her testimony, E.KQ. had answered in the affirmative that the defendant had engaged in this conduct— fondling her buttocks and vagina — between January 1, 2007 and January 30, 2007, between February 1, 2Q07 and February 27, 2007, between March 1, 2007 and March 30, 2007, between April 1, 2007 and April 29, 2007, between May-1, 2007 and May 30, 2007, between June 1, 2007 and June 29, 2007, between July 1, 2007 and July 30, 2007, and between-August 1, 2007 and August 31, 20Q7. E.KQ. said the fondling occurred inside their home and in the presence of family members.
E.Q. testified that the defendant touched her from January 2007 to May 2009, beginning when she was thirteen and ending when she was fifteen and these criminal charges were brought against him. Expanding on E.KQ.’s testimony, E.Q, stated the defendant would watch her and E.KQ. as they undressed to shower and dressed again afterwards., E.Q. said that she did not attempt to cover, herself with a towel, because if she had, she said the defendant would “call, [her] out on it and it would just be all bad after that.” E.Q. said she had to “play along with it, .pretend like [she was] okay \yith it, try to just shut it out of [her] mind that he was even there and just hurry up to get dressed as fast as [she could] —” E.Q. also expounded on E.KQ.’s testimony regarding the bras, stating they'were required to “model” new bras and underwear for the defendant and that he would feel their breasts to “make sure the bra fit — ”
E.Q. testified that, the defendant began asking her-if he could “pinch” her “p — —” in January 2007, when .she was in eighth grade. The defendant would touch her “so far low” on her buttocks that he wpuld touch her vagina over her clothes. To clarify that the defendant’s touching was one motion, the State asked:
[State]: How did it make you feel when your dad would — You said he would touch your buttocks and reach his hand up—
[E.Q.]: Um-hmmm.
[State]: —and touch -you where? ■
[E.Q.]: Like, I mean, it would' be' over • the clothes but he would grab our butt[s] and it would be so far low that, I mean, he was pretty much right there at our vaginas, pretty much.
[State]: So he would reach behind and—
[E.Q.]: Um-hmmm.
[State]: —touch your bottom—
[E.Q.]: Yes.
[State]: —and .reach up to your vagina? [E.Q.]: Um-hmmm.
E.Q. confirmed that the defendant stated his actions (touching her and asking if he could “pinch” her “p — —”) were appropriate because he was her father. When the defendant touched her, E.Q. explained that she would “immediately jerk[]'back but [she] couldn’t express that it was uncomfortable” because then the defendant’s reaction “would be horrible.” E.Q. said she would have been beaten had she acknowledged disliking the touching. She testified that the defendant would fondle her and E.K.Q. in the presence of others, stating:
I mean, he would [fondle our buttocks and vaginal areas] right in front of everybody. I mean, we’d sit at the kitchen table, my mom, dad drinking coffee, everyone, bend over to get something out of a drawer, he would do it-to my sister, [E.K.Q.], I mean, he never'hid it from anyone in the house.
E.Q. testified that this touching occurred weekly for nearly two-and-a-half years, until she moved out to live with her aunt in May 2009 and reported the defendant’s conduct. Like her sister, E.Q. wás asked whether the touching- occurred- each month, and she testified as follows:
[State]: You told different things that he would do. I’d like to elect to discuss the way that he would fondle or he would take his hand and touch your buttocks and reach up then to touch your vagina.
[E.Q.]: Yeah.
[State]: And between the dates of January 1, 2007, and January 30, 2007, did your father, [the defendant], fondle your buttocks and your vagina, even though it was over your clothing—
[E.Q.]: Um-hmmm.
[State]: —while at your house in Horns-by?
[E,Q.]: Yes. .
[State]: Between February 1, .2007, and February 27, 2007, did your father, [the defendant], fondle your buttocks and vagina while at-your house in , Hornsby?
[E.Q.]: Yes.
Ultimately, E.Q. replied in the affirmative that the defendant had touched her buttocks and vaginal area over her clothes once between January 1, 2007 and January 30, 2007, between February 1, 2007 and February 27, 2007, between March 1, 2007 and March 30, 2007, between April 1, 2007 and April 29, 2007, between May 1, 2007 and May 30, 2007, between June 1, 2007 and June 29, 2007, between July 1, 2007 and July 30, 2007, between August 1, 2007 and August 30, 2007, between September 1, 2Ó07 and September 29, 2007, between October 1, 2007 and October 30, 2007, between November 1, 2Ó07 and November 29, 2007, between December 1, 2007 and December 30, 2007, between January 1, 2008 and January 30, 2008, between February 1, 2008 and February 27, 2008, between March 1, 2008 and March 30, 2008, between April 1, 2008 and April 29, 2008, between May 1,- 2008 and May 30, 2008, between June 1, 2008 and June 29, 2008, between July.l, 2008 and July 30, 2008, between August 1, 2008 and August 30, 2008, between September 1, 2008 and September 29, 2008, between October 1, 2008 and October 30, 2008, between November
When called to the stand, J.S., the victims’ mother, corroborated the victims’ testimony regarding the defendant’s touching them between January 2007 and May 2009. On cross-examination, she admitted the defendant was very strict with the victims, but on redirect, she stated that the victims moved out to live with their aunt to escape the defendant’s touching, not his strict rules. ,
With this, the State rested its case-in-chief, and during the ensuing recess, the parties discussed jury instructions. The defendant elected not to testify and did not present additional proof. . The State sought to .cure its failure to elect in the previous trial by electing a specific type of abuse, limited to one incident per month— the defendant’s fondling of each victim’s buttocks and vagina. In its closing argument, the State reminded the jury:
Now, thé girls told you several things that daddy did over time. We made sure that we were very specific and that we elected one type of offense. The offense that we elected to prove occurred was his fondling their buttocks and their vagina[s]. The (inaudible) in the case we called out in the indictment. And we went through every one of them on both of those girls. And in those (inaudible), both of those girls were touched in their intimate parts or the clothing covering them intimate parts. Now, they told you they had their clothes when he did it but' he was still touching their buttocks and their vagina[s]. It wasn’t after the game, “good 'game.'” No, He was reaching down there and getting a little febl. That’s • ■ •• what they told -you.'
(Emphasis addéct) Befóte the jury retired to deliberate, the trial court gave the following jury instructions;
To [ejnsure a unanimous verdict the law requires the State to elect which alleged act testified to the State[,] and which the State is relying upon for your consideration!,] in deciding whether or not the defendant is guilty of this offense or any lesser included offense. The fact that the Court has'required the State to make such an election does not mean that the Court has found that the State has carried its burden of proof in thesq allegations beyond a reasonable doubt. That is for your determination. In this case, the State has elected to submit for your consideration the alleged act of sexual battery by ¿n authority figure and that will be on each of the thirty-seven counts, that these occurred at the defendant’s home either in Harde-man County or in Hornsby, I think was the testimony, and then the State was required to go through and, make an election on the date. So in Count One that date would be between January 1, 2007, and January 30, with the,allegation that the defendant fondled [E.K.Q.’s] vagina. and buttock[s], and that’s, in Count One. The difference in Count Two would be the election date. That, would be between February I, 2007, through February 27, 2007, and that’s with regard to Count Two. With regard to Count Three, the State makes the same election with the difference being the event daté, the allegation between March 1, 20Q7, and March 30, 2007. Again, that’s for Count Three.
The court gave similar instructions for counts four through eight with respect to E.K.Q., and for counts nine through thirty-
Before the Court of Criminal Appeals, the defendant contended that the State had failed “to elect properly the conduct for which it sought convictions” and that the evidence was not sufficient to support his conviction.
See State v. Qualls,
No. W2013-01440-CCA-R3-CD,
[T]he election was inadequate. The victims provided general testimony regarding the Defendant’s touching their buttocks and vaginal area during the specified time frames in the indictment but failed to provide particularity in order for the jury to have rendered discrete verdicts for each of the thirty-seven counts. The fact that the testimony was general does not relieve the State of the obligation to make a proper election.
Id. at *10 (internal citations omitted). Accordingly, the Court Of Criminal Appeals reversed the convictions and remanded for a new trial. 1
Thereafter, the- State of Tennessee filed an application for permission to appeal, which we granted. See Tenn. R.App. P. 11.
II. Analysis
A. Standard of Review
Neither the State nor the defendant discusses the standard of review that applies when this Court reviews the propriety of the State’s election of offenses; Here, unlike earlier cases,
see, e.g., State v. Knowles,
B. Election Doctrine
Article I, section 6 of the Tennessee Constitution provides “[t]hat the right
In most criminal trials, the constitutional guarantee of juror unanimity is readily satisfied. This is true because it is a general rule that evidence the defendant has committed “some other crime wholly independent of that for which he is charged, even though it is a crime of the same character” is generally excluded as “irrelevant.”
State v. Rickman,
Relaxation of the general prohibition on the admissibility of prior acts evidence created the potential for a non-unanimous jury verdict because “each unlawful act of carnal knowledge is a separate, substantive offense, rather than a continuous offense.”
Shelton,
The election doctrine also assists the defendant in preparing for and defending against the specific charge, protects the defendant from double-jeopardy concerns, “enables the trial judge to review the weight of evidence in its role as thirteenth juror[, and] enables an appellate court to review the legal sufficiency of the evidence.”
State v. Brown,
C. Means of Making an Election
Despite its importance to ensuring unanimity, applying the election doctrine in child sexual abuse cases ¡presents practical difficulties. As a result, this Court has not insisted upon a single means of making an election and has instead allowed “the State some latitude in the prosecution of criminal acts committed against young children who are frequently unable to identify a specific date on which a particular offense was committed.”
Rickman,
For example, the State may elect a particular offense by “narrowfing] the multiple incidents by asking the victim to relate any of the incidents to a specific month,”
We also have affirmed an election that identified the offense for which the prosecution sought conviction as the assault that occurred the night before .the victim’s first menstrual period,'even, though that night “could have occurred on any date during that year.”
State v. Herron,
All of this Court’s prior decisions addressing the election doctrine have involved cases where child victims provided specific testimony about the charged criminal acts and identified in some manner when those acts were perpetrated. Thus, those decisions have mandated the prosecution to elect the'specific act or incident for which it seeks conviction.
See Tidwell,
We have not previously addressed, however, how to deal with a case involving ■testimony concerning the commission of multiple instances of a similar type of abuse where the witnesses cannot or do not specifically differentiate the events, and there are fewer counts in the indictment than there is testimony about the abuse. In such cases children may have been subjected to abuse on a daily basis over an extended time, amounting to literally hundreds of offenses. It is often not feasible for prosecutors to charge every single one of those acts in separate, counts. The more counts that are charged, the more difficult it.becomes to differentiate them. This case, sadly, presents us with the opportunity to discuss this more complicated fact situation.
D. Generic Evidence
In this case the victims described with clarity the type of sexual battery perpe
Courts in other jurisdictions have termed this type of testimony “generic evidence.”
See R.L.G., Jr. v.
State,
As the California Supreme Court recognized, genéric evidence is often the only proof available in some of the most egregious child sexual abuse cases, which involve resident molesters who abuse their victims for years:
Child molestation cases frequently involve difficult, even paradoxical, proof problems. A young victim ... assertedly molested over a substantial period by a parent or other adult residing in his home, may have no practical way of recollecting, reconstructing, distinguishing or identifying by ‘specific incidents or dates’ all or even any such incidents. □Indeed, even a mature victim might understandably be hard pressed to separate particular incidents of. repetitive molestations by time, place or circumstance.
People v. Jones,
To address this unusual situation, other states have adopted the either/or approach to election.
See Johnson,
Nonetheless, the
Jones
Court determined that protecting the accused’s rights to proof of guilt beyond a reasonable doubt and jury unanimity may be achieved-in generic evidence cases. To do so, the
Jones
Court explained, the victim’s generic testimony must (1) describe
“the kind of act or acts committed
with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct ....“; (2) identify “the
number of acts
committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., -‘twice a month’ or ‘every time we went camping’)”; and (3) designate
“the general time period
in which these acts occurred (e.g., ‘the summer before my fourth grade,’ or ‘during each Sunday morning after he came to live with us’) to assure the acts were committed within the applicable limitation period.”
Id.,
The
Jones
Court also rejected “the contention that jury unanimity is necessarily unattainable” in generic evidence cases, explaining that, “although the jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place
the child victim testified that such conduct took place three times during that same period, and the jury believed that testimony in toto, its difficulty in differentiating between • the various acts should not preclude a conviction of the two counts'charged, so long as there is no possibility of jury disagreement regarding the defendant’s commission of any of these acts.
Id.
To ensure unanimous jury verdicts in generic evidence cases, the Jones Court prescribed “a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts,
also allows a conviction if-the jury unanimously agrees the defendant committed all the acts described by the victim.” Id.,
the jury either will believe the' child’s testimony that the consistent, repetitive pattern of acts occurred or disbelieve it. In either event, a defendant will have his unanimous jury verdict and the prosecution will have proven beyond a reasonable doubt that the defendant committed a specific act, for if the jury believes the defendant committed all the acts it necessarily believes he committed each specific act. ■. •
Id, (internal citations omitted) (emphasis added).
Other state courts have adopted the
Jones
■ approach to • satisfying the election doctrine in generic evidence cases.
See, e.g.,_ Thomas v. People,
Alabama was the state with election law most similar to Tennessee when it adopted the
Jones
approach - for generic evidence.
See R.L.G., Jr.,
The facts before us do not lend themselves to a straightforward application of the general law of election as it currently stands in Alabama
... It is a certain reality that “testimony describing a series of essentially indistinguishable acts of molestation is frequently the only testimony forthcoming from the victim.” Jones, [270 Cal.Rptr. 611 ],792 P.2d at 645 ..:. After weighing the considerations discussed above, we adopt, for purposes of this case, the “eithér/or” rulé, but only as that rule is modified for generic evidence: where the evidence of more than one incident of sexual molestation to a child victim by a resident child molester is purely generic and where “there is no reasonable likelihood of juror disagreement as toparticular acts, and the only question [for the jury] is whether or not the defendant in fact committed all of [the incidents],” the trial court should instruct the jury that it' can find the defendant guilty only if it unanimously agrees that he committed all the incidents described by the victim. Jones, [ 270 Cal. Rptr. 611 ],792 P.2d at 659 .
Id.
at 356, 366-67. The Alabama Supreme Court affirmed in its entirety the Court of Criminal Appeals’ decision adopting the
Jones
approach, and declared that “in eases involving purely generic evidence ... an alleged child molester can be afforded all the- process he or she is due, without requiring” ■ strict election;
Ex Parte R.L.G., Jr.,
. E. Tennessee Law and Generic Evidence
Today we join other state courts in concluding that, “[w]ith the exception of those who happen to select victims with better memories or who are one act offenders,” strict application of the election doctrine in
Like the Alabama Court of Criminal Appeals, we adopt the
Jones
approach but limit it to cases involving only generic evidence.
See R.L.G., Jr.,
But when the prosecution relies solely on generic evidence,
there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which ... allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim.
Jones,
Therefore, we hold that in generic evidence cases the prosecution néed -not elect a specific criminal act or incident as the basis of a conviction for each charge. Instead, the election doctrine may be satisfied in generic evidence cases by the trial court providing a modified unanimity instruction that allows a conviction only if the jury unanimously agrees the defendant committed all the acts described by the victim. However, consistent with prior decisions involving the election-of offenses doctrine, the trial court must determine at the conclusion of the State’s case-in-chief whether the proof is sufficiently specific as to apply the strict election requirement or whether the election requirement may be satisfied by giving the modified unanimity instruction.
See Knowles,
The State has offered proof in its case-in-chief óf more than one criminal act allegedly committed [by the defendant] [by one for whom the State alleges the defendant is criminally responsible]. To ensure a unanimous jury verdict [on the charge] [on each' count of the indictment], the State must prove beyond a reasonable doubt the commission of all of, the acts described by the alleged victim [as occurring within the time period charged] [as occurring within the time period charged in each Count of the indictment].
, In order to find the defendant guilty, you must unanimously agree that the State has proven beyond a reasonable doubt the commission of all of the acts described by the alleged victim [as occurring within the time period charged] [as occurring within ■ the time period charged in each Count of the indict ment].
Cf Cal. Jury Instruction Grim. 4.71.5.
Of course, the trial court did not have the benefit of our holding in this appeal; thus, the jury did not receive a modified unanimity instruction. Therefore, we must review that omission under a constitutional harmless error analysis.
F. Harmless Error Analysis
The election doctrine is “fundamental, immediately touching on the constitutional rights of an accused.”
Shelton,
Here, we are convinced beyond a reasonable doubt after examining the record that the erroneous lack of a modified unanimity instruction did not contribute to the verdict' obtained and that the jury’s verdict would have been the same had the modified unanimity instruction been given. Here, the defendant was convicted of thirty-seven counts of sexual battery by an authority figure. Both E.KQ. and E.Q. testified that the defendant made unlawful sexual contact with each of them on a regular basis over an extended period of time. Both victims described the type of sexual contact, testifying that the defendant fondled théir buttocks and vaginal areas. Both victims’ testified- that the sexual contact occurred during the time periods charged in the indictment. Both victims testified that this sexual contact occurred at least once during each of the months charged in the indictment, with one victim testifying that it occurred weekly. Each victim .testified that she saw the defendant touching the other victim. The victims’ mother also corroborated them testimony, affirming that she had witnessed the defendant touching the victims. The defendant’s guilt or innocence hinged on the jury’s assessment of the credibility of the victims’ testimony regarding the defendant’s touching them. The other elements of sexual battery by an authority figure were established by undisputed proof. For instance, the proof showed that E.KQ. and E.Q. were between thirteen and eighteen years of age when the sexual battery occurred. Undisputed proof also established that the defendant had parental authority over the victims and used that authority to accomplish the sexual contact. For instance, the victims were the defendant’s daughters and lived with him during the time period charged in the indictment. E.KQ. testified that she followed the defendant’s instruction because he had previously
Although the jury did not receive the modified unanimity instruction, the State elected the type of sexual contacb-the defendant’s act of fondling the victims’ buttocks and vaginal areas over their clothing — on which it was relying and sought convictions for one offense per month, per victim.
The trial court explicitly discussed the need for juror unanimity in the jury instructions:
Your verdict must represent the considered judgment of eách' of you as jurors. In order to return a verdict, it is necessary that each of you agree. Your verdict must be unanimous. It is your duty as jurors to consult with one another and to deliberate with a view to reach an agreement if you can do so without violence to your individual judgment.
Additionally, the defendant’s defense was a blanket denial to any sexual battery by an authority figure.
Cf. State v. Ducker,
III. Conclusion
In summary, we hold that the election doctrine does not require the prosecution to identify a single incident 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 is unable to furnish specific details, dates, or distinguishing characteristics as to individual incidents of sexual battery. As' have courts in other jurisdictions, we hold that where a prosecution is based solely on such generic evidence, the election doctrine is satisfied by providing the jury with a modified unanimity instruction that allows a conviction only if the jury unanimously agrees the defendant committed all the acts described by the victim. Although the absence of such a modified unanimity instruction amounts to nonstructural constitutional error, in this case the error is 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. It appearing the defendant
Notes
.As pertinent to this appeal, sexual battery by an authority figure is defined as "unlawful sexual contact with a victim by the defendant” if "[t]he Victim was, at the time of the offense, thirteen (13) years of age or older but less then eighteen (18) years of age” and "[t]he defendant had, at the time of the offense, parental or custodial authority over the victim and used the authority to accomplish the sexual contact,” Tenn.Code Ann. § 39-13-527(a) (2014). Additionally, "[s]exual contact” includes "the intentional touching of the clothing covering the immediate area of the victim’s ... intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification....” Tenn.Code Ann. § 39-13-501(6) (2014). The text of the statutes currently in effect is the same as that of the statutes in effect at the time of the proceedings in the trial court; thus, quotations and citations in this opinion are to the current statutes.
. As relevant to the defendant’s conviction, incest is defined as “engaging] in sexual penetration ... with a person, knowing the person to be, without regard to legitimacy: (1) The person's ... -adoptive child....” Tenn. Code Ann. .§ 39-15-302(a) (2014).
. While the victims are now of majority age, they were minors when these charges arose, and ”[i]t is the policy of this Court to identify
. The defendant adopted J.S. while he was married to her mother. The defendant began having sexual intercourse'with J.S. when she was thirteen, and they married in 1995.
See State v. Qualls,
No. W2010-02523-CCA-R3-CD,
. While E.K.Q. and E.Q. both refer to this woman as their "sister,” the record indicates this woman is their mother’s sister. They presumably refer to their aunt as their sister because the defendant had legally adopted her at the same time he adopted their mother.
. -The trial court sentenced the defendant as a Range I offender to five years at thirty percent on each count of sexual battery by an authority figure. The trial court ordered concurrent service of counts one through six, counts seven through eight, counts nine through fourteen, counts fifteen through twenty, counts twenty-one through twenty-six, counts twenty-seven through thirty-two, and counts thirty-three through thirty-seven, for a total effective sentence of thirty-five years. The trial court ordered these sentences served consecutively to the four-year sentence the defendant had received on the incest conviction.
. The order denying the motion is not included in the record on appeal, but neither party has raised, any concerns regarding its absence.
. We have previously acknowledged that insofar as aiding the defendant in preparing a defense, an-election at the close of the prosecution’s case-in-chief is much less effective than the defendant "requesting a bill of particulars before trial, pursuant to Tenn. R.Crim. P. 7(c).”
Shelton,
. The pattern unanimity jury instruction provides:
The [S]tate has offered proof in its case[-]in[-]chief of more than one act allegedly committed [by the defendant] [by one for whom the [S]tate alleges the defendant is criminally responsible] which the [S]tate alleges constitutes an element of (continued
the offense of-_ as charged in Count_ of the indictment. To ensure a unanimous verdict, the law requires the [S]tate to elect which alleged act testified to the [S]tate is relying upon for your consideration in deciding whether or not the defendant is guilty of this offense [or any lesser included offense]. The fact that the court has required the [S]tate to elect does not mean that the court has fotind that 'the [S]tate has carried its burden of proving those allegations beyond a reasonable doubt; that is for your determination. In this case, the [S]tate has elected to submit for your consideration the alleged act of _[occurring on_] [occurring at_] [when_]. Members of the jury, you are to consider only this alleged act in deciding whether or not the defendant has been proven guilty beyond a reasonable doubt of the offenses charged and included in Count_
7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 42.25 (updated Sept. 2015). .
. In pertinent part, the current California jury instruction states:
In order to find the defendant guilty, it is' necessary for the prosecution to'prove beyond a reasonable doubt the commission of [a specific act [or acts] constituting that crime] [all of the acts described by the alleged victim] within the period alleged. And, in order to find the defendant guilty, you must unanimously agree upon the commission of [the same specific act [or acts] constituting the crime] [all of the .acts described by the alleged victim] within the period alleged.
Cal. Jury Instruction Crim. 4.71.5.
. Washington’s either/or approach allows the State,
in its discretion, [to] elect the act upon which it will rely for conviction. Alternatively, if the jury is instructed that - all [twelve] jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, a unanimous verdict on one criminal act will be assured. When the State chooses not to elect, this jury instruction must be given to ensure the jury’s understanding of the unanimity, requirement.
Petrich,
. The Alabama Supreme Court has subsequently further relaxed the strict election rule, holding the either/or rule applies in cases that involve both generic and specific evidence of sexual abuse on a child by a resident molester.
See R.A.S. v. State,
. The Alabama Court of Criminal Appeals urged.its state legislature to address the practical problems associated with generic evidence cases by following the lead of California, which had statutorily created the new crime of continuous sexual abuse of a child.
R.L.G., Jr.,
The Tennessee General Assembly enacted a statute in 2014 creating the offense of continuous sexual abuse, but this statute does not apply in this appeal. See Teñn'.Code Ann. § 39-13-518 (2014) (limiting application to at least one incident occurring on or after July 1, 2014). Additionally, it is not clear whether the 2014 statute eliminates the practical diffi- , culties. associated with generip evidence cas.es, because, unlike the statutes enacted in other states, the 2014 statute specifically requires juror unanimity as to the acts of abuse. Id. § 39-13-518(e).
. As already noted, we reserve for an appropriate case the question of. how the election doctrine may be satisfied in cases involving both generic and specific evidence.
. We reiterate that even if victims cannot recall exact dates, victims may still be able to describe with some particularity specific instances of sexual abuse if they are asked to do • so. This evidence is always preferable. The prosecution in this case did not attempt at trial to elicit detailed testimony from the victims. Of course, this Court has no way of knowing whether the victims could have provided, additional details, and the prosecution may have known that the victims were incapable, of providing such testimony. We caution prosecutors not to rely on generic testimony if a victim is capable of describing the criminal acts with more particularity.
. . We have recognized a. third category of error-Hion-constitutional error. . For non-constitutional errors, “Tennessee law places the burden on the defendant ... to demonstrate that the error more probably than not affected the judgment or would result, in prejudice to the judicial process.”
State
.v.
Rodriguez,
. Like the California Supreme Court, we caution prosecutors to exercise their charging discretion wisely in generic evidence cases.
Jones,