C.L.Y. v. State

• Decision Date: 29 August 2003
• Docket Number: CR-02-0100.
• Citation: 928 So.2d 1047
• Parties: C.L.Y. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 1047

928 So.2d 1047

C.L.Y. v. STATE of Alabama.

CR-02-0100.

Court of Criminal Appeals of Alabama.

August 29, 2003.

Rehearing Denied October 24, 2003.

Frances Niccolai, Mobile, for appellant.

William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appellee.

BASCHAB, Judge.

The appellant, C.L.Y., was adjudicated delinquent based on a charge of first-degree sexual abuse of K.H.¹, a violation of § 13A-6-66(a)(1), Ala.Code 1975. The juvenile court ordered that he be committed to the custody of the Department of Youth Services. The appellant did not file any post-adjudication motions. This appeal followed.

The victim in this case made several statements that indicated that her seventeen-year-old uncle had sexually abused her. She was three years old at the time of the incidents. Citing § 15-25-31, Ala. Code 1975, the State filed a motion to admit several out-of-court statements the victim had made, and the defense opposed the motion. Before the delinquency hearing started, the juvenile court conducted a hearing on the admissibility of the victim's out-of-court statements, and several witnesses testified on behalf of the State.

J.H., the victim's mother and the appellant's adoptive sister, testified that, around the end of January 2002, the appellant stayed with her children while she picked up her husband from work. That night, the victim woke up in the middle of the night crying and said that the appellant had "licked her pee pee." (R1. 21.)² J.H. also testified that, around Mother's Day of 2002, several family members were at her mother's residence, where the appellant also resided. During that visit, the victim went to the appellant's bedroom to play a game. When she came out of the bedroom, she told her twin sister that the appellant had "touched her pee pee" and that they had been in the appellant's bedroom, where she had gone "to play the game." (R1. 17.) J.H. further testified that, a week or two later, she and her mother took the victim to the emergency room. While she was there, the treating doctor asked the victim generally about whether she had ever been touched. In response, the victim

"made a statement stating the fact that a car that was at my mother's house, and was broke down. She said that [the appellant] had her in the car and was rubbing lotion on her pee pee.

". . . .

". . . She said that they were in the car and he pulled her panties off and was rubbing her vaginal area and something about putting lotion on her."

(R1. 18-19.) J.H. explained that, when the victim made the statement at the hospital, they were not sure what she was talking about because she referred to "mamma's new car." (R1. 27.) However, subsequently, while J.H. and her sister were painting in a bathroom in her residence, the victim again made a statement about the appellant and a vehicle.

"She stated that [the appellant] took her down to the barn, behind the bushes at Mee Maw's house and he was rubbing his pee pee and trying to tickle the inside of hers. . . .

". . . .

". . . She also had stated — She repeated the story she had told about at the old house. She repeated the story of the car incident and we didn't really know the whole situations of the cars, when my husband had moved the car to our house and she stated, `[T]hat's the car outside that [the appellant] and I was in when he was rubbing my pee pee,' is what she had said."

(R1. 20.) J.H. explained that the vehicle had previously been at her mother's house and had been broken down. On the day the victim made the statement in the bathroom, the vehicle had been moved to J.H.'s residence. Finally, J.H. testified that the victim used the term "Pee Pee" to describe her own genitalia and male genitalia. (R1. 20.)

W.H., the victim's father and J.H.'s husband, also testified about the statement the victim made after the appellant had stayed with her in January 2002. Around midnight that night, after everyone had gone to bed, the victim "got up and came to our room and started talking to [J.H.] about [the appellant] licking her pee pee." (R1. 29.) W.H. also testified that, around Mother's Day of 2002, the victim and her twin sister were in the floor playing and the victim told her sister that "[the appellant] had touched her pee pee." (R1. 29.) W.H. further testified that he heard the statements the victim made to J.H. about the appellant and the vehicle while J.H. and her sister were painting the bathroom. The victim stated that the appellant "was rubbing lotion ... [o]n her legs and on her pee pee and on her arms." (R1. 30.) Finally, W.H. confirmed that the victim uses the term "pee pee" to refer to her vagina and to male genitalia. (R1. 31.)

J.Y., the victim's grandmother and the appellant's adoptive mother, testified that, during Mother's Day weekend of 2002,

"[w]e were sitting by the pool and I saw [the appellant] with [the victim] and he was coming out of the bushes, along side the pool area, and I asked him what he was doing and he said he was [taking the victim] to the barn and I said, `[F]or what?' And he said [the victim] wanted to see the chickens."

(R1. 54.) She also testified that, later that day, the victim "[came] down the hall and said that [the appellant] pulled her pants down and touched her pee pee." (R1. 44.) Finally, J.Y. testified that, when she and J.H. later took the victim to the hospital, the victim "told the doctor that [the appellant] pulled her pants down and touched her down there. And she also told the doctor that he had put lotion on her." (R1. 45.)

C.Y., the victim's grandfather and the appellant's adoptive father, testified that, around Mother's Day of 2002, he heard the victim make a statement about the appellant to her twin sister. At that time, the victim said "that [the appellant] pulled her pants down and touched her on her pee pee." (R1. 37.) He also testified that she repeated the statement "a couple of different times" to her sister. (R1. 37.)

C.C., the victim's aunt and the appellant's adoptive sister, testified that, around Mother's Day weekend of 2002, the victim "was playing with her sister and she said, `[The appellant] touched my pee pee." (R1. 77.) She also testified that, while she and J.H. were painting J.H.'s bathroom, the victim said, "`[The appellant] touched my pee pee and put lotion on my pee pee and my legs.'" (R1. 77.)

M.C., the victim's uncle and C.C.'s husband, testified that, while he was watching television during Mother's Day weekend of 2002, he heard the victim and her twin sister talking to each other. One of the girls said that the appellant had touched her pee pee and asked the other girl if he had touched hers, and the other girl responded that he had. He was not sure whether the victim or her twin sister had made the statement, and he and his wife asked the girls to repeat what they had said. He testified that he believed that, at that time, the victim's twin sister said that the appellant had touched her pee pee, and the victim agreed.

Tammy Dawn Bardimes, who was employed by the Mobile County Department of Human Resources, interviewed the victim regarding her allegations of sexual contact by the appellant. She testified that she discussed good and bad touches and that, afterward, the victim

"disclosed that on one occasion [the appellant] had taken her behind the bushes at her Mee Maw's house, referring to her grandmother, and he had touched her in her vagina area and he had also touched himself at that time. She also disclosed on another occasion, which was what the original report was about, that [the appellant] had touched her [on her vaginal area] in his bedroom."

(R1. 56.) Bardimes also testified that various family members had made statements to her that were not consistent with their testimony during the hearing. However, the family members disputed that testimony or explained any perceived inconsistencies.

During the delinquency hearing, the witnesses again testified for the State. Although much of their testimony was similar to their previous testimony, some of them also presented additional testimony about the statements the victim had made.

J.H. testified that various family members were at her mother's residence during Mother's Day weekend of 2002. One afternoon, the victim told her twin sister two or three times that the appellant had touched her pee pee. Immediately before she made the statement, she had been in the appellant's room playing a game. J.H. further testified that

"[t]here was times I sat with her and she would talk to me and she told me that [the appellant] had touched her in her vaginal area — well, touched her pee pee while he was rubbing his. She had also made a statement about [the appellant] rubbed lotion on her in mommy's new car, is what it was, behind the bushes at Mee Maw's house. She had also made a statement one time that [the appellant] had took her in his room and wouldn't let her out and was touching her pee pee in there."

(R2. 7.) Finally, she testified that, after she took the victim to the emergency room, the victim

"made a statement stating that he had rubbed lotion on her pee pee in mommy's new car . . .

". . . .

". . . [W]hen we did bring the car home we found out exactly what she meant by [the appellant] putting lotion on her in the car because she told us, `[The appellant] had me in that car, your new car,' she said."

(R2. 8.)

W.H. testified that, while the family was at the victim's grandparents' residence during Mother's Day weekend of 2002, the victim told her twin sister that the appellant "had touched her pee pee." (R2. 14.) He also testified that, on a previous occasion, the victim had come into their bedroom and told them that the appellant "had licked her pee pee." (R2. 15.) He further testified that, on another occasion, he had overheard the victim tell J.H. "that [the appellant] had rubbed lotion on her legs and on her pee pee." (R2. 15.) Finally, he testified that the victim used the...