Beavers v. State, 6 Div. 221

• Citation: 511 So.2d 951
• Decision Date: 30 June 1987
• Docket Number: 6 Div. 221
• Parties: George BEAVERS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 951

511 So.2d 951

George BEAVERS v. STATE.

6 Div. 221.

Court of Criminal Appeals of Alabama.

June 30, 1987.

Kenneth H. Weldon of Bland, Bland & Weldon, Cullman, for appellant.

Don Siegelman, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.

TYSON, Judge.

George Beavers was indicted for first degree rape in violation of § 13A-6-61, Code of Alabama 1975. The jury found the appellant "guilty of rape, first degree." He was sentenced to 30 years' imprisonment in the state penitentiary.

The prosecutrix testified that on August 6, 1986, she was living in the same apartment complex as the appellant and was 14 years old. She had known the appellant and his family for approximately three months prior to the alleged rape and had visited in their home on previous occasions.

The prosecutrix testified that on August 6, 1986, she visited the appellant's home. She arrived there at approximately 2:00 p.m. and began talking to the appellant and his wife. After a few minutes had passed, the appellant grabbed the prosecutrix and took her into a back bedroom. The appellant's wife instructed the couple's four children to remain in the living room and then followed the prosecutrix and the appellant into the bedroom.

The appellant then undressed the prosecutrix, ripping her blouse, and raped her. The prosecutrix testified that the appellant's wife assisted in restraining her. The prosecutrix testified that the appellant tried to have sexual intercourse with her for approximately one hour. She screamed and kicked in an attempt to escape.

The prosecutrix ran from the appellant's residence to her home next door at approximately 5:00 p.m. She reported the incident to police officials sometime in September, 1986. Since the day of the incident, the prosecutrix has not visited the appellant's residence.

Brenda Ford, a program administrator with the Regional Housing Authority, testified that she was in charge of the Fairview Apartments where the appellant and the prosecutrix lived on August 6, 1986. Sometime in September of 1986 the prosecutrix filed a complaint with Ms. Ford concerning the incident involving the appellant.

T.B. testified that she worked as a babysitter for the appellant from March through June of 1986. At that time she was 16 years old. She worked five days a week and was responsible for watching the children. The appellant's wife was pregnant at the time and both she and the appellant were at home during this period.

Ms. B. testified that in June or July of 1986 she was spending the night at the appellant's residence as part of her babysitting responsibilities. She had done this twice before. The appellant's wife and children were in the house and Ms. B. was sleeping in a bedroom with one of the appellant's children.

At approximately 12:00 midnight, the appellant came into the room and asked Ms. B. if she would have sex with him. She replied, "no", and the appellant attempted to have sexual intercourse with her. The appellant left the room a short time later after Ms. B "told him to quit." (R. 54) Ms. B. quit working for the appellant shortly after this incident.

The appellant testified that he never saw the prosecutrix on the day of the alleged incident. He admitted that Ms. B. had worked for him but denied that he had ever had sexual intercourse with her. He was working at a Mr. Hamby's residence on the day in question until approximately 3:00 p.m. He then drove to a restaurant and did not return to his home until approximately 4:00 p.m. He testified that Mr. and Mrs. Hamby visited his home that evening around 6:00 or 7:00 o'clock p.m. Mr. and Mrs. Hamby both testified, corroborating the appellant's alibi testimony.

I

The appellant contends that the trial court erred in allowing Ms. B. to testify concerning the alleged previous incident involving her. He argues that the evidence was introduced for the sole purpose of suggesting that he was more likely to have committed the crime charged here and, therefore, its admission constituted reversible error. We disagree.

This evidence was admissible as falling within the "identity exception" to the general rule precluding evidence of collateral crimes. See Lawrence v. State, 441 So.2d 1021 (Ala.Crim.App.1983); Thomas v. State, 409 So.2d 955 (Ala.Crim.App.1981); Primm v. State, 473 So.2d 547 (Ala.Crim.App.1984); Smith v. State, 409 So.2d 455 (Ala.Crim.App.1981). In Lawrence, this court noted:

" '[T]he identity exception seems to have taken on a more liberal definition when the defendant is charged with a sex crime such as rape. In such cases the courts seem to allow proof of other similar crimes by the accused if they, in any way, go to identify him as the person who committed the now-charged crime.' "

441 So.2d at 1024 (quoting C. Gamble, McElroy's Alabama Evidence § 70.01(22)(b) (3d ed. 1977)).

As in Primm, supra at 554,

"The identity of defendant as the rapist was in issue in the instant case. The only evidence presented by defendant was to show by testimony as to an alibi that he was not the person who raped the alleged victim. What was held in Thomas v. State, Ala.Cr.App., 409 So.2d 955, cert. denied, Ala. (1982), in an opinion by Judge Bowen, now Presiding Judge, at 409 So.2d 957, is applicable and controlling in the instant case:

'The rule is that the "identity exception to the general exclusionary rule only becomes applicable when the identity of the person who committed the now-charged crimes is in issue." McElroy, Section 69-01(8). In Williams v. State, 350 So.2d 708 (Ala.1977), the Supreme Court of Alabama held that where the accused offers no other defense beyond the plea of not guilty and the State's witness makes a positive identification based upon his observation of the accused at the scene of the first robbery, the identity of the accused is not in issue so as to justify admission of evidence of a subsequent robbery. "Merely entering a plea of not guilty without presenting any witnesses, or an alibi, or other defense, did not place identity in issue." Williams, 350 So.2d at 710."

We stated in Thomas, supra at 958: "In presenting an alibi defense, the identity of the defendant is placed in issue." See Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 (1975), and cases cited therein.

The collateral incident proved at trial was sufficiently similar to that which occurred in the instant case. The incidents, which occurred within approximately two months (at most) of each other, both involved the appellant and young teenagers with whom the appellant was acquainted. Both incidents occurred in the appellant's own home while his wife and children were there. The trial judge committed no error in this regard. See Whitley v. State, 37 Ala.App. 107, 64 So.2d 135 (1953). See also Smith v. State, 409 So.2d 455 (Ala.Crim.App.1982).

II

The appellant contends that the trial court erred in denying his motion for judgment of acquittal on the grounds that the State failed to prove a prima facie case. He argues that the State failed to prove the element of penetration.

The appellant's contention is unsupported by the record. When the State inquired as to this very fact, the prosecutrix clearly responded: "He did." (R. 19) The appellant objected to the State's question on the grounds that it was leading after the prosecution had responded. The trial judge overruled the appellant's objection. The prosecutrix then reaffirmed, several times, the fact that penetration had occurred. (R. 19) See Jackson v. State, 471 So.2d 516 (Ala.Crim.App.1985); Smith v. State, 368 So.2d 298 (Ala.Crim.App.1978), writ quashed, 368 So.2d 305 (Ala.1979). The State met its burden of proving a prima facie case. The trial judge, therefore, committed no error in denying his motion for judgment of acquittal. Harris v. State, 333 So.2d 871 (Ala.Crim.App.1976).

III

The appellant contends that the trial court erred in overruling his objection to the State's use of a leading question during its direct examination of the prosecutrix concerning the issue of penetration. The appellant's contention is without merit.

This issue was not properly preserved for our review. The appellant objected to the State's question after the witness had responded. Tuck v. State, 384 So.2d 1240 (Ala.Crim.App.1980).

Moreover, it is well-settled that it is " 'within the discretion of the trial court to permit leading questions asked of an immature witness on direct examination by the party who called him' " Cady v. State, 455 So.2d 101 (Ala.Crim.App.1984) (quoting Gamble, supra § 121.05(8)) (emphasis added); Knight v. State, 495 So.2d 712 (Ala.Crim.App.1986). Although the record does not indicate the precise age of the prosecutrix at the time of trial, she could not have been over age 15 since she was 14 at the time of the incident in August, 1986 and the trial was held on November 17, 1986.

As we stated in Cady, supra, wherein the witness was 17 years old at the time of trial:

"Even though the witness was older than the witnesses in the cases cited, we believe the nearness of the age of the witness in the instant case to the ages of the witnesses in the cited cases [in Gamble, supra], whose answers to leading questions on direct examination were authoritatively approved, is a proper factor to be considered in this case; especially so, we think, because of the delicacy of the subject matter."

Cady, supra at 104 (emphasis added). See also Ray v. State, 248 Ala. 425, 27 So.2d 872 (1946) (leading questions on direct examination held proper where addressed to 14 year old child); Collins v. State, 364 So.2d 368 (Ala.Crim.App.), cert. denied, 364 So.2d 374 (Ala.1978) (leading questions held proper on direct examination where addressed to 16 year old who was mentally retarded). The trial judge did not abuse his discretion in allowing the State to use leading questions under these circumstances; therefore, no error occurred here. Cady, supra; Ray, supra.

IV

The appellant contends that the...