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Court of Appeals of Kentucky.


NO. 2009–CA–000957–MR

Decided: October 28, 2011

BEFORE:  ACREE, COMBS, AND KELLER, JUDGES. BRIEF FOR APPELLANT:  Brandon Neil Jewell Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Heather M. Fryman Assistant Attorney General Frankfort, Kentucky



Tories Double Qualls appeals his conviction in the Hardin Circuit Court for first-degree rape.   After our review of the record and the law, we affirm.

In March 2008, a young girl, twelve years of age, was forcibly raped by Qualls in Hardin County.   She did not tell anyone about the rape until seventeen days after it had occurred.   At that time, an arrest warrant was issued.   Qualls was arrested in Grayson County.   Detectives from Elizabethtown went to the Grayson County jail to interview him.   During the interview, the detectives insinuated that if Qualls would admit that he had engaged in consensual intercourse with the victim, he would receive a light sentence—possibly parole.   The detectives feigned a sympathetic attitude toward Qualls, suggesting that perhaps the child had “seduced” him.   Qualls then confessed that he had had sex one time with the girl.   However, near the end of the interview, he told the detectives that he had only penetrated her digitally.

At Qualls's jury trial, the Commonwealth presented portions of the interview, including Qualls's admissions.   Qualls testified in his own defense.   The defense theory was that the disproportionately large size of his sexual organ rendered a rape by Qualls a physical impossibility.   The victim also testified.   The jury found Qualls guilty of rape in the first degree, and he received a sentence of thirteen years.   This appeal follows.

Qualls presents two arguments on appeal.   He contends that he was denied the opportunity to present a complete defense because the court did not allow the recording of the interview to be played in its entirety.   He also contends that he was then denied the opportunity to recite the omitted portions verbatim.   We disagree.

The Commonwealth asserts that Qualls did not preserve the issue of the recording for our review.   We agree that the record is confusing.   Qualls's counsel appeared to change his position several times regarding whether he wished all or none of the recording to be presented.   However, he did make a motion for the recording to be played in its entirety at trial.   Therefore, we will consider the merits on appeal.

Our standard of review for evidentiary issues is whether the trial court abused its discretion.  Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky.1996) (overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky.2008)).   Our Supreme Court has defined abuse of discretion as a court's acting arbitrarily, unreasonably, unfairly, or in a manner “unsupported by sound legal principles.”  Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

Qualls correctly points out that it is error not to give a defendant the opportunity to explain the circumstances that surrounded a confession.   Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986).   He also relies on Kentucky Rule[s] of Evidence (KRE) 106, “the rule of completeness,” which provides as follows:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

However, if the excluded portion is otherwise inadmissible, it may only be used if it corrects a misleading statement or changes the perceived meaning of the admitted statement.  Schrimsher v. Commonwealth, 190 S.W.3d 318, 330–31 (Ky.2006).

We have reviewed the trial, and we are persuaded that the trial court provided Qualls with ample opportunity to explain the circumstances of his confession to the jury.   The trial court did not allow the entire recording to be played or a verbatim recital by Qualls because of KRE 412, “the Rape Shield Law.” That law prohibits introducing evidence of the victim's past sexual behavior or inclinations.

In applying the Rape Shield Law to the evidence, the trial court properly complied with the balancing test prescribed by KRE 403, which provides that evidence is inadmissible if it is more prejudicial than probative.   Recently, our Supreme Court has held that applying the KRE 403 balancing test to the Rape Shield Law is appropriate and should not be disturbed by an appellate court unless the trial court abused its discretion.  Mayo v. Commonwealth, 322 S.W.3d 41, 50 (Ky.2010).

The trial court did not permit the detectives' innuendoes against the victim to be admitted because there was no evidence to support their suggestive comments.   Impliedly, their remarks were only utilized as an interrogation technique.   No evidence has been presented that suggests otherwise.   The victim was young and had been traumatized by the events.   The accusations likely would have traumatized her more and were not probative for Qualls's defense.   The court did not abuse its discretion in finding that the detectives' remarks –whether on the recording or as recounted by Qualls on the witness stand – were more prejudicial than probative.

The record also reveals that the trial court asked Qualls if there were portions of the recording that he would like to present to the jury that would clarify the confession, and he declined.   Furthermore, when he testified, Qualls was allowed to explain to the jury that he felt pressured to confess because he believed that he was saying what the officers wanted to hear, resulting in an advantage for him as to sentencing.   Qualls told the jury that he confessed because he felt threatened.   He had ample opportunity to express to the jury that he felt coerced into confessing.   We also note that the jury heard the portion of the interview in which Qualls told the detectives that he had not penetrated the victim other than digitally.

The recording of the interview was only one portion of the Commonwealth's evidence against Qualls.   The victim testified about the night in question in great detail while Qualls's account of the events was vague and kept changing throughout his testimony.   The victim had also contracted the same sexually transmitted disease that one of his sexual partners had contracted in the weeks before the rape.   The victim's mother testified that she believed that Qualls raped her daughter in retaliation for her having spurned him.   Additionally, Qualls was permitted to present the main focus of his defense (the allegedly prodigious size of his male organ) to the jury.   His girlfriend and his stepfather corroborated his claim in this respect, and counsel's closing argument emphasized it as well.

After our review, we have found no basis to set aside the verdict of this jury.   Finding no error by the trial court, we affirm Qualls's conviction in the Hardin Circuit Court.


COMBS, JUDGE:   Double