State of Tennessee v. Jimmy Dale Qualls

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.

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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

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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

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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

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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

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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

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