Election of Offenses

Likewise, whether an election of offenses is required is a question of law this court reviews de novo. State v. Qualls, 482 S.W.3d 1, 8 (Tenn. 2016). The doctrine of election “safeguards the defendant’s state constitutional right to a unanimous jury verdict by ensuring that jurors deliberate and render a verdict based on the same evidence.” State v. Johnson, 53 S.W.3d 628, 631 (Tenn. 2001); see also Qualls, 482 S.W.3d at 9. The purpose of an election is to assist the defendant in preparing for and defending against a specific charge, protect the defendant from double-jeopardy, enable the trial court to review the weight of evidence in its role as thirteenth juror, and allow an appellate court to review the legal sufficiency of the evidence. Id. at 10. An election is required when the evidence at trial shows that the defendant has committed more offenses against the victim than were charged in the indictment. Qualls, 482 S.W.3d at 9; State v. Kendrick, 38 S.W.3d 566, 568 (Tenn. 2001); State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997). Electing the facts upon which the State intends to rely for each count of the indictment protects “the defendant’s state constitutional right to a unanimous jury verdict by ensuring that jurors deliberate and render a verdict based on the same evidence.” Johnson, 53 S.W.3d at 631.

State v. Green, No. M2021-01438-CCA-R3-CD, p. 19 (Tenn. Ct. Crim. App. Mar. 28, 2023). 

“[E]lection errors are subject to a constitutional harmless error analysis.” State v. Smith, 492 S.W.3d 224, 236 (Tenn. 2016) “[N]on-structural constitutional error requires reversal unless the State demonstrates beyond a reasonable doubt that the error is harmless.” State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008) (emphasis added). “The test used to determine whether a non-structural constitutional error is harmless is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. (citations and internal quotation marks omitted).