RUCKER, J.
After a conviction for three counts of child molesting the defendant appealed contending, among other things, that his convictions must be vacated because they were not the product of a unanimous jury verdict. We granted transfer to explore this issue.
On July 3, 2006 the State charged then fifty-nine-year-old Elmer Dean Baker with two counts of child molesting as Class A felonies. The victims of the alleged offenses were two of Baker’s grandchildren, C.B. and J.A. And the offenses were alleged to have occurred in “June and July of 2003.” . . . After a jury trial in June of 2007 the trial court declared a mistrial when the jury could not reach a verdict. Thereafter the State sought leave to amend the charging information to reflect the time period “from October 2000 through August 2003.” . . . An additional count of child molesting as a Class C felony was also added. The alleged victim was A.H., a cousin of C.B. who is unrelated to Baker. This offense was alleged to have occurred “in or about 2002.” . . . Baker was also alleged to be a habitual offender.
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Although the United States Supreme Court “has never held jury unanimity to be a requisite of due process of law,” Johnson v. Louisiana, 406 U.S. 356, 359 (1972) (affirming a state robbery conviction based on a nine-to-three jury verdict), [footnote omitted] this jurisdiction has long required that a verdict of guilty in a criminal case “must be unanimous.” Fisher v. State, 291 N.E.2d 76, 82 (Ind. 1973) (rejecting argument that the trial court erred in instructing the jury that its verdict must be unanimous); Taylor v. State, 840 N.E.2d 324, 333 (Ind. 2006) (“[W]hile jury unanimity is required as to the defendant’s guilt, it is not required as to the theory of the defendant’s culpability.”).
In general, the precise time and date of the commission of a child molestation offense is not regarded as a material element of the crime. Accordingly, this Court has long recognized “that time is not of the essence in the crime of child molesting. It is difficult for children to remember specific dates, particularly when the incident is not immediately reported as is often the situation in child molesting cases.” Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992) (citations omitted). Depending on the facts of a particular case, applying the rule of jury unanimity can present difficult challenges in charges of child molestation.
We find it useful to review a few scenarios, each with some relevance to the case before us, in which the issue of jury unanimity commonly arises in child sex offense cases. The first of these occurs when a young child is abused by “an abuser residing with the child . . . [who] perpetuate[s] the abuse so frequently . . . that the young child loses any frame of reference in which to compartmentalize the abuse into distinct and separate transactions. Such evidence of abuse has been termed generic evidence.” See R.L.G. v. State, 712 So.2d 348, 356 (Ala. Crim. App. 1997) (internal quotation marks omitted). The victim’s “generic testimony” may describe a pattern of abuse (“every time mama went to the store”) rather than specific incidents (“after the July 4th parade”). Thus, a concern arises because the jury is not presented with a specific act upon which they unanimously may agree.
In response to this recurring problem, several jurisdictions have enacted criminal statutes that do not require evidence of particular incidents for prosecution. See, e.g., State v. Fortier, 780 A.2d 1243, 1249, 1250 (N.H. 2001) (“A continuous course of conduct crime . . . does not require jury unanimity on any specific, discrete act . . . . [O]ur legislature created [N.H. Rev. Stat. 632-A:2] to respond to the legitimate concern that many young victims, who have been subject to repeated, numerous incidents of sexual assault over a period of time by the same assailant, are unable to identify discrete acts of molestation.”). [Footnote omitted.] However, the Indiana legislature has not adopted a statute criminalizing an ongoing pattern of sexual abuse when the victim is unable to reconstruct the specific circumstances of any one incident. We encourage the General Assembly to consider this issue.
Another source of concern stems from jury instructions that are delivered disjunctively or charging instruments that allege the defendant engaged in either “X” or “Y” behavior. In this regard, our jurisprudence has drawn a distinction between disjunctive instructions and charging instruments allowing for alternative means of committing an offense, versus alternative separate criminal offenses.
One of the well-established rules of criminal pleading is that there can be no joinder of separate and distinct offenses in one and the same count. . . . Thus, a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two or more underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense. . . . .
By contrast “the State may allege alternative means or ‘theories of culpability’ when prosecuting the defendant for a single offense.” Vest, 930 N.E.2d at 1225. In essence the State is permitted to “present[] the jury with alternative ways to find the defendant guilty as to one element.” Cliver v. State, 666 N.E.2d 59, 67 (Ind. 1996); see also Taylor, 840 N.E.2d at 333-34 (“It is settled that as long as each juror is convinced beyond a reasonable doubt that the defendant is guilty of murder as that offense is defined by statue, it need not decide unanimously by which theory he is guilty.”) (citation omitted).
In the context of cases where a defendant is charged with a single sexual offense, this Court has noted that because the crime of child molesting is committed if the defendant performs either sexual intercourse or deviate sexual conduct on a child, “[t]he charged crime of child molesting would be proven in the event of either of the alternative acts described in the statute.” Tague v. State, 539 N.E.2d 480, 481-82 (Ind. 1989); see also State v. Hartness, 391 S.E.2d 177, 180 (N.C. 1990) (holding the crime of indecent liberties against a child is “a single offense which may be proved by evidence of the commission of any one of a number of acts”).
Similar to the first noted concern, jury unanimity is also at issue where, as in the case before us, evidence is presented of a greater number of separate criminal offenses than the defendant is charged with. Jurisdictions have approached this problem in a variety of ways. See generally Cooksey v. State, 752 A.2d 606 (Md. 2000) (cataloging cases). The procedure most commonly followed to balance the need to prosecute cases involving repetitive acts charged in a single count with the defendant’s assurance of jury unanimity has been described as the “either/or” rule. That is to say, the defendant is entitled either to an election by the State of the single act upon which it is relying for a conviction or to a specific unanimity instruction. For example, in State v. Petrich the defendant was charged with two counts of an offense that in this jurisdiction would amount to child molesting. At trial numerous incidents of sexual contact were described in varying detail. The defendant was convicted of both counts and on appellate review he contended, among other things, that the State’s failure to elect the act upon which it relied for conviction deprived him of the right to a unanimous verdict. With respect to this contention the Washington Supreme Court reached the following conclusions:
When the evidence indicates that several distinct criminal acts have been committed, but [the] defendant is charged with only one count of criminal conduct, jury unanimity must be protected. . . . The State may, in its discretion, elect the act upon which it will rely for conviction. Alternatively, if the jury is instructed that all 12 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.
683 P.2d 173, 178 (Wash. 1984)3 (overruled on other grounds by State v. Kitchen, 756 P.2d 105 (Wash. 1988)). Some jurisdictions endorse this view. . . . .
The California Supreme Court has adopted a slight variation of the either/or rule. In instances in which the State declines to make an election and the evidence indicates the jurors might disagree as to the particular act defendant committed, a standard unanimity instruction should be given. People v. Jones, 792 P.2d 643, 649 (Cal. 1990). Where, however, the testimony of the victim recounts undifferentiated or generic occurrences of the sexual act, a modified unanimity jury instruction must be given because:
[A]lthough a prosecutorial election or unanimity instruction can help focus the jury on the same specific act where evidence of several distinct acts has been elicited, nonetheless neither an election nor a unanimity instruction is very helpful where the victim is unable to distinguish between a series of acts, any one of which could constitute the charged offense. In a case consisting only of “generic” evidence of repeated sex acts, it would be impossible for the prosecutor to select a specific act he relies on to prove the charge, or for the jury to unanimously agree the defendant committed the same specific act.
Id. at 650. Therefore, the Court explained:
[W]hen 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, 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. . . . [In this latter situation], because credibility is usually the “true issue” [] 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. at 659 (internal quotation marks and citations omitted).
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We adopt the reasoning of the California Supreme Court in Jones, supra and hold that the State may in its discretion designate a specific act (or acts) on which it relies to prove a particular charge. However if the State decides not to so designate, then the jurors should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged.4 [4 A slightly modified version of the State of California jury instruction – titled “When Proof Must Show Specific Act or Acts Within Time Alleged” – provides a useful model for this jurisdiction:
The defendant is accused [in Count[s] ___ ] of having committed the crime of ___________, a violation of Indiana Code Section __________, on or about a period of time between ________ and ________.
In order to find the defendant guilty, it is necessary for the State to prove beyond a reasonable doubt the commission of [here insert 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 [here insert the same specific act [or acts] constituting the crime] [all of the acts described by the alleged victim] within the period alleged.
It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.
See CALJIC 4.71.5 (West 2011). . . . .] . . . .
In the case before us, the State did not designate which specific act or acts of child molestation that it would rely upon to support the three-count charging information. But as noted above, the State was not compelled to do so. Concerning the unanimity requirement, the trial court instructed the jury in relevant part “Your verdicts must represent the considered judgment of each juror. In order to return a verdict of guilt or innocence you must all agree. . . . Upon retiring to the jury room the Foreperson will preside over your deliberations and must sign and date the verdicts to which you agree. Each verdict must be unanimous. . . .” . . . .
It is clear that the foregoing instruction did not advise the jury that in order to convict Baker the jury must either unanimously agree that he committed the same act or acts or that he committed all of the acts described by the victim and included within the time period charged. However, Baker neither objected to the trial court’s instruction nor offered an instruction of his own. This issue is waived. . . . We will review an issue that was waived at trial if we find fundamental error occurred. . . . The error must be so prejudicial to the defendant’s rights as to make a fair trial impossible. . . . .
In this case the only issue was the credibility of the alleged victims. The only defense was to undermine the young women’s credibility by, among other things, pointing out inconsistencies in their statements, and advancing the theory that they were lying in retaliation for Baker getting C.B. into trouble. Essentially “this case is about whether or not these kids will lie about [Baker] and make stuff up about him . . . .” . . . “Ultimately the jury resolved the basic credibility dispute against [Baker] and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed.” . . . We conclude Baker has not demonstrated that the instruction error in this case so prejudiced him that he was denied a fair trial.
Shepard, C.J., and Dickson, Sullivan and David, JJ., concur.