Election of Offenses
Issue: Must a conviction be reversed when the State’s elected offense specified the wrong act for the date provided?
Facts: Defendant was tried for one count of rape of a child. The State offered evidence that the Defendant and the Victim engaged in fellatio in April 2005 upon returning from the hospital, and also that they engaged in cunnilingus on other occasions. When the trial court asked the State to elect a particular act of rape, the prosecutor elected the act of cunnilingus in April 2005 upon returning from the hospital, and the jury was so instructed. Defendant was convicted.
Appellate Decision: The intermediate court noted that the elected offense was factually wrong: the April 2005 act was fellatio, rather than cunnilingus as charged to the jury. Nonetheless, the court found the election error harmless under these circumstances because fellatio was the only act alleged on the day in question, so jurors could not have been considering different occurrences or acts.
Review Granted: September 19, 2014.
Prediction: Ben thinks the Supreme Court will reverse. Although only one act allegedly occurred on the elected date, the act actually charged allegedly occurred on other dates. The intermediate court’s opinion assumes the jurors each considered the date as charged and realized the wrong act was charged. However, it is also possible that some jurors considered the act as charged and believed the wrong date was charged. The lower court’s logical reasoning would only be sound if no evidence had been offered regarding the charged act. If the judge and prosecutor got the facts mixed up, there is a reasonable chance the jury did as well. David believes the error must result in a vacated conviction without the opportunity for retrial.