Barger v. State, 6 Div. 158

• Decision Date: 29 September 1989
• Docket Number: 6 Div. 158
• Citation: 562 So.2d 650
• Parties: David W. BARGER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 650

562 So.2d 650

David W. BARGER v. STATE.

6 Div. 158.

Court of Criminal Appeals of Alabama.

Sept. 29, 1989.

Rehearing Denied Feb. 23, 1990.

Rickey J. McKinney, Asst. Public Defender, Tuscaloosa, for appellant.

Don Siegelman, Atty. Gen., and Gilda B. Williams, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

This is an appeal from the appellant's convictions of sexual abuse in the first degree and sodomy in the first degree.

In February 1985, a Tuscaloosa County grand jury indicted the appellant for sexual abuse in the first degree, in violation of § 13A-6-66, Code of Alabama (1975), and sodomy in the first degree, in violation of § 13A-6-63. In November 1985, appellant filed a motion for psychological examination, testing, and evaluation of the victim, and the State moved to dismiss this motion. The trial court held a hearing on appellant's motion on February 6, 1986, after which his motion was denied. On February 27, 1986, appellant was convicted in a jury trial of both offenses charged. Thereafter, he was sentenced to a term of 15 years' imprisonment on the sexual abuse charge, and a term of 5 years' imprisonment on the sodomy charge.

I.

The appellant contends that the State failed to prove a prima facie case of sexual abuse in the first degree and sodomy in the first degree, and that the trial court therefore erred in denying his motion for judgment of acquittal. Appellant further contends that the trial court erred by allowing the State to re-open its case-in-chief and present additional evidence. We do not agree.

In the case sub judice, appellant was convicted of sexual abuse in the first degree, in violation of § 13A-6-66, Code of Alabama (1975), and of sodomy in the first degree, in violation of § 13A-6-63(a)(3). In this Court's opinion, the testimony of the victim, A.W., established every element of both offenses except that of the appellant's age, and this element was proved by the testimony of Ms. T.R., the victim's great-grandmother. Ms. T.R. testified on behalf of the State that she knew the appellant and that he was over the age of 16. A.S. testified that she was 12 years old when the trial occurred in February 1986; thus, she was less than 12 years of age when the incident giving rise to this prosecution took place in January 1985. A.S. testified that, on that day, the appellant made her undress and lie on her bed, and that he then took his "private part," put it on her "private part," and tried to stick it in her. The victim likewise testified that the appellant kissed her on her private part, and that she obeyed the appellant because she was afraid that he would whip her if she did not. The record indicated that the appellant regularly whipped the victim, occasionally leaving large bruises on her thighs.

"The standard for appellate review of the sufficiency of the evidence in a case such as this one was aptly set out in Dolvin v. State, 391 So.2d 133 (Ala.1980):

" ' "In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir.1974); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971); Clark v. United States, 293 F.2d 445 (5th Cir.1961).

" ' "[W]e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir.1969); Roberts v. United States, 416 F.2d 1216 (5th Cir.1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir.1967):

" ' " 'Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir.1963, 321 F.2d 140; Riggs v. United States, 5 Cir.1960, 280 F.2d 949.... The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is to examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged. McGlamory, 441 F.2d at 135 and 136.' " ' (Emphasis in original.)

"391 So.2d at 137-38, quoting Cumbo v. State, 368 So.2d 871, 874 (Ala.Crim.App.1978), cert. denied, Ex parte Cumbo, 368 So.2d 877 (Ala.1979)."

Ex parte Robinette, 531 So.2d 697, 698-99 (Ala.1988).

This Court has reviewed the record of this case, and believes that there was sufficient evidence from which the jury might have reasonably excluded every reasonable doubt. The appellant maintains that alleged discrepancies in the victim's testimony, of A.S., considered together with the contradictory testimony presented by witnesses for the defense, are sufficient to create a reasonable doubt as to his guilt. Such inconsistencies, however, raise questions of weight, not sufficiency, and present credibility issues for the jury. Heup v. State, 549 So.2d 528 (Ala.Cr.App.1989); Currin v. State, 535 So.2d 221 (Ala.Cr.App.1988), cert. denied, 535 So.2d 225 (Ala.1989). As the evidence presented by the State was sufficient to sustain the jury's verdict, appellant's argument as to this issue must fail.

The appellant likewise alleges that the trial court erred to reversal by permitting the State to reopen its case-in-chief. Section 15-14-4, Code of Alabama (1975), states as follows:

"The court may, at its discretion, at any time before the conclusion of the argument, when it appears to be necessary to the due administration of justice, allow a party to supply an omission in the testimony on such terms and under such limitations as the court may prescribe."

A trial court has broad discretion to reopen evidence at any time prior to the close of final argument. United States v. Willis, 759 F.2d 1486, 1502 (11th Cir.1985), cert. denied, 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985); Williams v. State, 364 So.2d 717 (Ala.Cr.App.1978). Appellant has shown no abuse of the trial court's discretion in allowing the State to reopen its case-in-chief, and we have found none. Therefore, no error exists in this regard.

II.

The appellant next argues that the trial court erred by allowing a witness to give an impermissible statement of opinion as to the ultimate issue at trial. The record indicates that Mary Haygood, the Department of Human Resources caseworker who handled A.S.'s case, was called as a witness for the defense. Counsel attempted to use statements received by Ms. Haygood in the course of her investigation which reflected disbelief of the victim's allegations, to impeach the victim's testimony. During cross-examination of Ms. Haygood, the following occurred:

"CONTINUED CROSS EXAMINATION

"BY MR. SULLIVAN:

"Q. Now, Mary, Mr. Prince asked you if the mother of [A.S.] told you she did not believe what [A.] had said; is that correct?

"A. Yes.

"Q. And he asked you if you had an opinion as to whether or not you believed [A.]?

"A. That's right.

"Q. Do you have an opinion?

"A. I do.

"Q. And what is that opinion?

"MR. PRINCE: We renew our objections, all of them that we made in chambers.

"THE COURT: Overrule.

"Q. What is that opinion?

"A. I believed [A.] when she told me of her sexual abuse."

(Record at 288-89.) (Emphasis supplied.)

On direct examination of this same witness, defense counsel elicited the following testimony, to which no objection was raised:

"Q. Okay. And I'm not trying to be discourteous to you, Mrs. Haygood, but you have an opinion in this case, don't you?

"A. Yes, I do.

"Q. And, in fact, you tried to get Mrs. Hallman to change her opinion, didn't you?

"A. I asked her--When I initially went to her after [A.] was placed in her home, I asked her what she knew of why [A.] was asked to stay there and what she told me was different from--

"Q. Okay.

"A. I told her what had been alleged.

"Q. Okay.

"A. I asked her--At first, she was shocked and that was the kind of disbelief she expressed. I asked her if she could--to see if she could not believe [A.].

"Q. All right. And then you also made an entry in your notes, didn't you, about that Mrs. Hallman impressed you as a reasonable person--

"A. Yes.

"Q. --that appears open to receiving new information and to having her opinion changed?

"A. Yes.

"Q. Were you trying to change her opinion?

"A. I believed what [A.] told me."

(Record at 250-51.) (Emphasis supplied.)

Clearly, the testimony offered by Ms. Haygood on cross-examination is nearly identical to testimony given by her without objection on direct examination. In each instance, Ms. Haygood stated that she believed the allegations of sexual abuse that the victim made to her. Because Ms. Haygood's testimony during cross-examination was merely cumulative to that offered by her on direct examination, error in its admission, if any, was harmless. Bogan v. State, 529 So.2d 1029, 1030 (Ala.Cr.App.1988) ; Harris v. State, 412 So.2d 1278 (Ala.Cr.App.1982).

III.

The appellant argues that the trial court erred in denying his motion for mistrial, where the prosecution attempted, prior to any impeachment of the victim's testimony, to question the victim's great-grandmother about specific details of the victim's complaint. The record indicates that the following occurred on direct examination of Ms. T.R.:

"Q. Mrs. R., without going into anything that [A.] said, was the complaint that she made to you of a sexual nature?

"MR. PRINCE: Now, we object to this.

"A. Yes.

"MR. PRINCE: Wait...