State of Tennessee v. Jimmy Dale Qualls ( 2012 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    Assigned on Briefs December 6, 2011
    STATE OF TENNESSEE v. JIMMY DALE QUALLS
    Direct Appeal from the Circuit Court for Hardeman County
    No. CC-10-CR-88      J. Weber McGraw, Judge
    No. W2010-02523-CCA-R3-CD - Filed March 14, 2012
    A Hardeman County Circuit Court Jury convicted the appellant, Jimmy Dale Qualls, of
    thirty-seven counts of sexual battery by an authority figure and one count of incest, Class C
    felonies, and the trial court sentenced him to an effective sentence of thirty-two years in
    confinement. On appeal, the appellant contends that he is entitled to a new trial because the
    State failed to make an election of offenses for the sexual battery convictions. The State
    acknowledges that the trial court committed reversible error. We agree with the appellant
    and the State that the appellant’s convictions for sexual battery by an authority figure must
    be reversed because the State failed to make an election of offenses. The case is remanded
    to the trial court for a new trial for those offenses. The appellant’s conviction for incest is
    affirmed.
    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed
    in Part and Reversed in Part, and the Case is Remanded.
    N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which A LAN E. G LENN, and
    J EFFREY S. B IVINS, JJ., joined.
    Shana Johnson and Parker Dixon (at trial), Somerville, Tennessee, James O. Martin, III, (on
    appeal), Nashville, Tennessee, for the appellant, Jimmy Dale Qualls.
    Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
    General; D. Michael Dunavant, District Attorney General; and Joe L. VanDyke and Lisa
    Borden, Assistant District Attorneys General, for the appellee, State of Tennessee.
    OPINION
    I. Factual Background
    The record reflects that in May 2010, the Hardeman County Grand Jury indicted the
    appellant for counts one through thirty-seven, sexual battery by an authority figure, and count
    thirty-eight, incest. The victim in the first eight counts was the appellant’s daughter, E.Q.,1
    and each count alleged a different date for the offense. Specifically, the grand jury returned
    one count for every month from January 2007 to August 2007. The victim in counts nine
    through thirty-seven was the appellant’s daughter, E.Q.2, and each count again alleged a
    different date for the offense. Specifically, the grand jury returned one count for every month
    from January 2007 to May 2009. The victim in count thirty-eight, alleging incest between
    March 10, 1995, and May 30, 1999, was J.Q., the appellant’s wife and the mother of E.Q.
    and E.Q.2.
    At trial, thirty-nine-year-old J.Q. testified that the appellant’s name used to be
    Kenneth Dewayne Parrack. When J.Q. was five years old, the appellant married her mother.
    He adopted J.Q. and her younger sister in 1984. At that time, J.Q.’s last name also became
    Parrack. She said that her mother did not want her and her sister to be afraid of the appellant,
    so “she let us touch him and put our mouth on him and stuff like that.” She said that she did
    not perform oral sex on the appellant but that she kissed and felt his private parts. When J.Q.
    was thirteen years old, she began having sexual intercourse with the appellant, and when she
    was fourteen or fifteen years old, he began sleeping with her in her bedroom. She
    acknowledged that she and the appellant were living as husband and wife. J.Q.’s mother
    remained in the home but slept in her own bedroom. When J.Q. was sixteen years old, her
    mother moved out of the house. J.Q. married the appellant in 1995, and they had three
    daughters and one son. She said that their daughter, E.Q., was twenty-one-years-old at the
    time of trial, and that their daughter, E.Q.2, was sixteen years old. She said that E.Q.2
    currently was living with J.Q.’s sister in Arkansas because of “the abuse that we all suffered
    and I didn’t protect them from it, the Judge took them away from me as well as him . . .
    because there was the abuse that I knew or should have known about.” She said that she and
    the appellant stopped having sexual intercourse several years before trial but that they had
    oral sex occasionally until he was arrested in this case.
    On cross-examination, J.Q. testified that while their children were living with her and
    the appellant, the family had Bible study regularly and “would have supper at the table and
    talk.” She said that at some point, her son left home and that the family had a meeting with
    him “to air things out so that he could start coming back around with a little more peace and
    less stress around everybody.” She said that E.Q. made “A’s” in school and E.Q.2 made
    “straight A’s.” However, J.Q. had not had much contact with them since the children had
    been removed from her home.
    1
    To protect the identities of the victims, we will refer to them by their initials. Also, because two
    of the victims have first names that start with the letter E, we will refer to them as E.Q. and E.Q.2 for clarity.
    -2-
    E.Q. testified that she was born on September 1, 1989, that she currently lived in
    Arkansas, and that she moved to Arkansas three days before the appellant was arrested in this
    case. She said that she lived with her mother and the appellant for nineteen years and that
    she and the appellant “never got along at all.” She said that she was a senior in high school
    in January 2007 and that the appellant began asking her, “‘Can I pinch your p****?’” She
    said that he would “poke us like right up where the butt is or grab our butts or things like
    that” and that the appellant’s behavior made her uncomfortable. The State asked her when
    the appellant would “do this,” and she answered, “There really wasn’t, you know, a specific
    time that he would do it. I’d be in the kitchen putting something in the microwave and he
    would come up behind me and, you know, fiddle right there at my butt.” However, she
    stated, “It was something that I experienced every month. He wouldn’t necessarily do it
    every day.” E.Q. said that if she expressed discomfort with the appellant’s behavior, he
    accused her of being “melodramatic” and made her feel “like a piece of crap.” She
    explained, “I got to the point where I just . . . I had to put on a happy face and if I didn’t, I’d
    get yelled at.”
    E.Q. testified that the appellant never actually pinched her vagina but that he would
    pinch her leg or the side of her leg over her underwear. She demonstrated for the jury where
    the appellant touched her. She said that they had some “good weeks” but that “I don’t
    remember ever a month going by where there wasn’t some kind of a fight, a whipping, a hit,
    a touch or anything like that.” She said the appellant claimed he was trying to make her
    aware of parts of her body that people should not touch. She said that she remembered the
    abuse occurring in January 2007 and that she became eighteen on September 1, 2007.
    E.Q.2 testified that she was born on November 30, 1993, and that she lived with her
    parents until 2009. Regarding her relationship with the appellant, she explained that “I was
    more the favorite” and “sort of went my way around any problem just to not have any
    conflict.” She said that from 2002 to 2008, she and her sisters bought new bras about every
    other month and that the appellant “would feel on the breast area to make sure that the bra
    fit.” She said the appellant also “would come up and like he would touch our butts, like
    smack our butts, and then he would take his finger, like when we would bend down or just
    turn around behind him and wiggle his finger on our private part.” She said that the appellant
    touched her vagina over her clothes “probably like twice a week” and that he touched her
    from 2002 until she was taken away from her parents in May 2009. E.Q.2 said that when she
    was ten years old, the appellant began asking her and her two sisters, “‘Can I pinch your
    p****?’” She said that he asked them “[p]robably once per month” and that he continued
    to do so until 2007. She said she never told the appellant to stop because “I was scared
    because my sister asked him one time to stop touching her butt and she got yelled at and in
    big trouble and like he hit her and so I sort of learned from that that if I had said something
    that it would just turn right on me.” Finally, she said that the appellant would watch her and
    -3-
    her sisters undress to get into the shower and that he would be in the bathroom when they got
    out of the shower.
    On cross-examination, E.Q.2 acknowledged that the appellant initiated family
    meetings. At first, she denied being upset about her lack of freedom with her parents.
    However, she acknowledged talking with an interviewer at the Carl Perkins Center about her
    “freedom situation” and that the appellant limited her access to the telephone and internet.
    She also acknowledged telling the interviewer at the Carl Perkins Center that the appellant
    began touching her vagina over her clothes when she was thirteen years old, not nine years
    old. Before the appellant was arrested, E.Q.2 talked with her sister about moving out of the
    house and gave the appellant an ultimatum: either let E.Q.2 live somewhere else or she and
    her sister were going to call the police. She acknowledged that she never told her teachers
    or schoolmates about the abuse.
    On redirect examination, E.Q.2 testified that she wanted to move out of her parents
    home “[b]ecause since my mom and my sister were . . . out working, he didn’t have them to
    beat up on so he started in on me ‘cause I was the oldest left.” She said her mother knew
    about the abuse but did nothing to stop it.
    The jury convicted the appellant as charged of thirty-seven counts of aggravated
    sexual battery by an authority figure and one count of incest. After a sentencing hearing, the
    trial court sentenced him as a Range I, standard offender to four years on each count and
    ordered that the sentences be served consecutively for a total effective sentence of one
    hundred fifty-two years. During the motion for new trial hearing, the trial court reconsidered
    the length of the appellant’s effective sentence and modified it to thirty-two years.
    II. Analysis
    The appellant raises various issues regarding his convictions. However, all of his
    claims are related to the State’s failure to make an election of offenses for the sexual battery
    convictions. The State acknowledges that its failure to make an election of offenses
    constitutes reversible error. We agree with the appellant and the State.
    When an indictment charges that a number of sexual offenses occurred over a span
    of time, the State may introduce evidence of any unlawful sexual activity between the
    defendant and the victim allegedly occurring during that span of time. State v. Rickman, 
    876 S.W.2d 824
    , 828-829 (Tenn. 1994). However, at the conclusion of its case-in-chief, the State
    must elect the particular incident for which a conviction is being sought. See Burlison v.
    State, 
    501 S.W.2d 801
    , 803 (Tenn. 1973); see also State v. Johnson, 
    53 S.W.3d 628
    , 630
    (Tenn. 2001). This requirement of election serves several purposes: (1) it enables the
    -4-
    defendant to prepare for the specific charge; (2) it protects a defendant against double
    jeopardy; (3) it ensures the jurors’ deliberation over and their return of a verdict based upon
    the same offense; (4) it enables the trial judge to review the weight of the evidence in its role
    as the thirteenth juror; and (5) it enables an appellate court to review the legal sufficiency of
    the evidence. State v. Brown, 
    992 S.W.2d 389
    , 391 (Tenn. 1991).
    Recognizing the practical difficulties present in applying the election requirement in
    cases of child sexual abuse, our supreme court has granted that “the state is not required to
    identify the particular date of the chosen offense. . . . [A] particular offense can often be
    identified without a date.” State v. Shelton, 
    851 S.W.2d 134
    , 137 (Tenn. 1993); see Brown,
    992 S.W.2d at 392 (providing that “[t]he State is not required to prove that an offense was
    committed on a specific date unless the date is an element of the crime or essential to proving
    the offense.”). As the court explained,
    If, for example, the evidence indicates various types of
    abuse, the prosecution may identify a particular type of abuse
    and elect that offense. Moreover, when recalling an assault, a
    child may be able to describe unique surroundings or
    circumstances that help to identify an incident. The child may
    be able to identify an assault with reference to a meaningful
    event in his or her life, such as the beginning of school, a
    birthday, or a relative’s visit. Any description that will identify
    the prosecuted offense for the jury is sufficient. . . . [T]he trial
    court should bear in mind that the purpose of election is to
    ensure that each juror is considering the same occurrence. If the
    prosecution cannot identify an event for which to ask a
    conviction, then the court cannot be assured of a unanimous
    decision.
    Shelton, 851 S.W.2d at 138.
    However, in Tidwell v. State, 
    922 S.W.2d 497
    , 501 (Tenn. 1996), the State argued
    that, when a victim is unable to recount any specifics about multiple incidents of abuse
    except that the defendant engaged her in sexual intercourse on numerous occasions, “‘jury
    unanimity is attained . . . because, although the jury may not be able to distinguish between
    the various acts, it is certainly capable of unanimously agreeing that they took place in the
    number and manner described.’” (Emphasis added.) The Tennessee Supreme Court
    specifically rejected this argument. Tidwell, 922 S.W.2d at 501. Moreover, the court held,
    “A defendant’s right to a unanimous verdict before imposition of conviction requires the trial
    court to take precautions to ensure that the jury deliberates over the particular charged
    -5-
    offense, instead of assembling a ‘patchwork verdict’ based on the different offenses in
    evidence.” Id.
    Turning to the instant case, we initially note that the appellant never requested an
    election of offenses. However, “the election requirement is a responsibility of the trial court
    and the prosecution and, therefore, does not depend on a specific request by a defendant.”
    State v. Kendrick, 
    38 S.W.3d 566
    , 569 (Tenn. 2001).
    E.Q. testified that in January 2007 , when she was seventeen years old, the appellant
    began asking her, “‘Can I pinch your p****?’” She said that he also would “poke us like
    right up where the butt is” and that the abuse occurred every month. E.Q.2 testified that the
    appellant touched her vaginal area over her clothes “[p]robably like twice a week” from 2002
    to May 2009. However, neither victim provided a single detail that differentiated one offense
    from another.
    The facts in this case are similar to the facts in Tidwell. In that case, the defendant
    was indicted for fourteen counts each of rape, statutory rape, incest, and contributing to the
    delinquency of a minor for engaging in sexual activity with his thirteen-year-old daughter
    once per month for fourteen months. 922 S.W.2d at 499 n.2. At trial, the victim testified that
    the sexual activity actually occurred about once per week during that time period. Id. For
    all but two of the rapes, she was unable to “ascribe a particular act to a specific time, whether
    by date or other reference.” Id. The jury convicted the appellant of forty-two counts:
    fourteen counts each of rape, incest, and contributing to the delinquency of a minor. Id. at
    498-99. In explaining why the State should have made an election of offenses, our supreme
    court stated,
    The State apparently concludes that “jury unanimity is attained
    in such cases because, although the jury may not be able to
    distinguish between the various acts, it is certainly capable of
    unanimously agreeing that they took place in the number and
    manner described.”
    This approach, in our view, is akin to a “grab-bag” theory
    of justice. To illustrate the operation of this theory, in any given
    case the State could present proof on as many offenses within
    the alleged period as it chose. Because all such offenses will
    have been “proven,” the jury may, in effect, reach into the
    brimming bag of offenses and pull out one for each count. Even
    when done by this method, the argument goes, each offense will
    have been proven beyond a reasonable doubt. We acknowledge
    -6-
    that the illustration is an extreme one, but we think it makes the
    point: such an approach is contrary to our law.
    Id. at 501. In light of the foregoing, we conclude that the trial court committed reversible
    error by failing to require the State to make an election of offenses.
    III. Conclusion
    Based upon the record and the parties’ briefs, the appellant’s convictions for sexual
    battery by an authority figure are reversed, and the case is remanded to the trial court for a
    new trial as to those charges. The appellant’s conviction for incest in count thirty-eight is
    affirmed.
    _________________________________
    NORMA McGEE OGLE, JUDGE
    -7-
    

Document Info

Docket Number: W2010-02523-CCA-R3-CD

Judges: Judge Norma McGee Ogle

Filed Date: 3/14/2012

Precedential Status: Precedential

Modified Date: 4/17/2021