State v. Qualls

Decision Date28 January 2016
Citation482 S.W.3d 1
Parties State of Tennessee v. Jimmy Dale Qualls
CourtTennessee Supreme Court

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Rachel E. Willis, Lead Senior Counsel; James E. Gaylord, Senior Counsel; Mike Dunavant, District Attorney General; Joe Van Dykeand Katie Walsh, Assistant District Attorneys General, for the appellant, State of Tennessee.

Andrea Sipes Lester (on appeal), Jackson, Tennessee, and David A. Stowers(at trial), Bolivar, Tennessee, for the appellee, Jimmy Dale Qualls.

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., and JEFFREY S. BIVINSand HOLLY KIRBY, JJ., joined.

OPINION

CORNELIA A. CLARK, J.

The dispositive issue in this appeal is whether the election of offenses doctrine, articulated in Burlison v. State, 501 S.W.2d 801 (Tenn.1973), and reaffirmed in State v. Shelton, 851 S.W.2d 134 (Tenn.1993), requires the prosecution to identify a single incident of sexual battery in cases, such as this one, where the child victim testifies to repeated incidents of sexual contact occurring over a substantial period of time but does not furnish any specific details, dates, or distinguishing characteristics as to individual incidents of sexual battery. We hold, as have courts in other jurisdictions, that where a prosecution is based on such nonspecific or "generic" evidence, requiring the prosecution to elect a single specific incident is not possible. However, to prevent infringement upon the defendant's right to a unanimous verdict, the trial court must give a modified unanimity instruction which informs the jury that it must unanimously agree the defendant committed all the acts described by the victim in order to convict the defendant. Although the trial court did not have the benefit of this decision and therefore did not provide the modified unanimity instruction to the jury in this case, we conclude, based on the record in this appeal, that the omission of this instruction was harmless beyond a reasonable doubt. Accordingly, we reverse the Court of Criminal Appeals' judgment vacating the defendant's convictions of sexual battery by an authority figure and reinstate the trial court's judgment approving the jury's verdict.

I. Factual and Procedural Background

In May 2010, the Hardeman County Grand Jury indicted Jimmy Dale Qualls ("the defendant") for thirty-seven counts of sexual battery by an authority figure,1 a Class C felony, and one count of incest.2 The alleged victims of the sexual battery charges were the defendant's daughters, E.K.Q. and E.Q.3 The alleged victim of the incest charge was J.S., the defendant's adopted daughter, whom he married in 1995. J.S. is the mother of E.K.Q. and E.Q.4

At an initial trial on the May 2010 indictments, the jury convicted the defendant of all charges. The defendant appealed, contending that the State had failed to make an election of offenses. Qualls, 2012 WL 939001, at *1. The State conceded that it had erroneously failed to make an election of offenses for the sexual battery by an authority figure charges and that this failure constituted reversible error. Id. The Court of Criminal Appeals, therefore, affirmed the defendant's conviction for incest but reversed his convictions of sexual battery by an authority figure and remanded for a new trial of those charges. Id.

On January 8, 2013, the defendant was retried on thirty-seven counts of sexual battery by an authority figure. The State called three witnesses: E.K.Q., E.Q., and their mother, J.S.

E.K.Q., the oldest daughter, was born on September 1, 1989, and was seventeen when the sexual battery occurred. She lived with her parents and siblings throughout the duration of the touching, which began in January 2007, when she was a senior in high school, and ended in August 2007, when E.K.Q. turned eighteen. E.K.Q. said the defendant, using slang terms for the vaginal area, "would say things like, 'Let me pinch your p––––' " frequently, and when she and her younger sister, E.Q., got new bras, he would "feel the bras to make sure they fit correctly." She testified that the defendant would come up behind her and E.Q. and use his finger to "fiddle" with their "butt crack[s]" and would grab her or E.Q.'s vagina, but would laugh about it," as if it were a joke. At trial, E.K.Q. stood and demonstrated the defendant's action. E.K.Q. explained the defendant "would tell [them] that it was okay for him to do it [because] he was teaching [the victims] what to not let other people do." E.K.Q. also said that the defendant used the bathroom when she and E.Q. showered and remained in the bathroom, watching them as they dried off, again stating that his being there was acceptable because he was their father.

E.K.Q. explained that she followed the defendant's instructions because he kept a "whooping" stick and had previously choked, punched, and "stomped" her when she had disobeyed him. When asked why her mother had not stopped the defendant from staying in the bathroom while she and her sister showered, E.K.Q. explained that when her mother had previously tried to stop the defendant, he had choked, slapped, and kicked her mother. E.K.Q. left the family home in May 2009 and moved in with her maternal aunt5 in Arkansas. E.K.Q. told her aunt about the abuse, and her aunt encouraged E.K.Q. to report it to the police.

When asked what type of sexual abuse occurred most frequently, E.K.Q. replied, It would be, like, butt grabbing or the fiddling—I mean, it all kind of was altogether—and the pinching the p––––." She agreed the "butt grabbing" and fondling of the vaginal area were "done in concert with each other." During her direct examination, E.K.Q. answered in the affirmative when asked if the defendant fondled her in that manner once each month:

[State]: So, [E.K.Q.], we're talking about—we've previously talked about all the different types of sexual contact that your father had with you; right?
[E.K.Q.]: Yes, ma'am.
[State]: And I'm trying to get to the specific—specific instances that it happened and what month they happened in so I'm going to be as specific as I can so if I'm asking a confusing question, feel free to ask me to rephrase it.
[E.K.Q.]: Yes, ma'am.
[State]: Between January 1, 2007, and January 30, 2007, did your father, [the defendant], fondle your buttocks and vagina at your home in Hardeman County, Tennessee?
[E.K.Q.]: Yes, ma'am.
[State]: And between February 1, 2007, and February 27, 2007, did your father, [the defendant], fondle your buttocks and vagina at your house in Hardeman County, Tennessee?
[E.K.Q.]: Yes, ma'am.

By the close of her testimony, E.K.Q. had answered in the affirmative that the defendant had engaged in this conduct—fondling her buttocks and vagina—between January 1, 2007 and January 30, 2007, between February 1, 2007 and February 27, 2007, between March 1, 2007 and March 30, 2007, between April 1, 2007 and April 29, 2007, between May 1, 2007 and May 30, 2007, between June 1, 2007 and June 29, 2007, between July 1, 2007 and July 30, 2007, and between August 1, 2007 and August 31, 2007. E.K.Q. said the fondling occurred inside their home and in the presence of family members.

E.Q. testified that the defendant touched her from January 2007 to May 2009, beginning when she was thirteen and ending when she was fifteen and these criminal charges were brought against him. Expanding on E.K.Q.'s testimony, E.Q. stated the defendant would watch her and E.K.Q. as they undressed to shower and dressed again afterwards. E.Q. said that she did not attempt to cover herself with a towel, because if she had, she said the defendant would "call [her] out on it and it would just be all bad after that." E.Q. said she had to "play along with it, pretend like [she was] okay with it, try to just shut it out of [her] mind that he was even there and just hurry up to get dressed as fast as [she could] ...." E.Q. also expounded on E.K.Q.'s testimony regarding the bras, stating they were required to "model" new bras and underwear for the defendant and that he would feel their breasts to "make sure the bra fit...."

E.Q. testified that the defendant began asking her if he could "pinch" her "p––––" in January 2007, when she was in eighth grade. The defendant would touch her "so far low" on her buttocks that he would touch her vagina over her clothes. To clarify that the defendant's touching was one motion, the State asked:

[State]: How did it make you feel when your dad would—You said he would touch your buttocks and reach his hand up—
[E.Q.]: Um-hmmm.
[State]: —and touch you where?
[E.Q.]: Like, I mean, it would be over the clothes but he would grab our butt[s] and it would be so far low that, I mean, he was pretty much right there at our vaginas, pretty much.
[State]: So he would reach behind and—
[E.Q.]: Um-hmmm.
[State]: —touch your bottom—
[E.Q.]: Yes.
[State]: —and reach up to your vagina?
[E.Q.]: Um-hmmm.

E.Q. confirmed that the defendant stated his actions (touching her and asking if he could "pinch" her "p––––") were appropriate because he was her father. When the defendant touched her, E.Q. explained that she would "immediately jerk [ ] back but [she] couldn't express that it was uncomfortable" because then the defendant's reaction "would be horrible." E.Q. said she would have been beaten had she acknowledged disliking the touching. She testified that the defendant would fondle her and E.K.Q. in the presence of others, stating:

I mean, he would [fondle our buttocks and vaginal areas] right in front of everybody. I mean, we'd sit at the kitchen table, my mom, dad drinking coffee, everyone, bend over to get something out of a drawer, he would do it to my sister, [E.K.Q.]. I mean, he never hid it from anyone in the house.

E.Q. testified that this touching occurred weekly for nearly two-and-a-half years, until she moved out to live with her aunt in May 2009 and reported the defendant's conduct. Like her si...

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