Election of Offenses
Issue: Was the State’s election of offenses sufficiently specific?
Facts: Defendant was convicted of abusing his two daughters over a lengthy period of time. The case was reversed the first time for failure of the State to properly elect which facts fit into which counts of the multi-count indictment. On retrial the State made a passing attempt at election but the judge’s instructions provided in part that: “[T]he State has elected to submit for your consideration the alleged act of sexual battery by an authority figure . . . with the election that the defendant fondled [E.Q.]’s vagina and buttocks. The difference between Count Nine and Thirty-seven on the dates would be Count Nine would be an event date between January 1, 2007, through January 30, 2007. On Count Ten the State makes the same election with regard to facts with the difference between the date being February 1, 2007, through February 27, 2007. On Count Eleven, the State makes the same election with regard to facts with the difference being the allegation occurred March 1, 2007, through March 30, 2007.”
Appellate Decision: The Court of Criminal Appeals held this election was not specific enough and that “on remand, the State should elicit sufficient facts from the victims to distinguish each of the alleged offenses and make an election of the offenses based on those facts that will permit a jury to render discrete verdicts for each count.”
Review Granted: January 15, 2015.
Prediction: David believes the Supreme Court will reverse. The girls testified in sufficient detail so as to elicit the elements of the offense. The judge’s charge specified the date of each allegation. While barely sufficient, David thinks this satisfied the election requirement and the convictions will be affirmed.