CM v. State

• Decision Date: 26 March 2004
• Citation: 889 So.2d 57
• Parties: C.M. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

889 So.2d 57

C.M. v. STATE of Alabama.

CR-03-0197.

Court of Criminal Appeals of Alabama.

March 26, 2004.

James Robert Bentley, Oneonta, for appellant.

William H. Pryor, Jr., atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.

SHAW, Judge.

The appellant, C.M., a 15-year-old male, was adjudicated delinquent on the following charges: one count of sexual abuse in the first degree, a violation of § 13A-6-66(a)(1), Ala.Code 1975, with respect to M.U., a five-year-old girl; one count of sexual abuse in the first degree, a violation of § 13A-6-66(a)(1), Ala.Code 1975, with respect to A.T., a four-year-old girl; one count of sexual misconduct, a violation of § 13A-6-65(a)(3), Ala.Code 1975, with respect to M.U.; and one count of indecent exposure, a violation of 13A-6-68(a), Ala.Code 1975. He was committed to the custody of the Alabama Department of Youth Services.

The evidence adduced at the delinquency hearing indicated the following. On April 19, 2003, A.T., M.U., and G.T. were at S.S.'s home in Blount County playing with S.S.'s daughter. S.S. testified that initially she was outside with the girls, but that when her son and C.M. came home from riding bicycles, she went inside the house to clean up. According to S.S., her daughter came inside with her, but A.T., M.U., and G.T. stayed outside to play with a toy gun. After a few minutes, S.S. noticed that the girls had gotten quiet, so she looked out her door to check on them. S.S. testified that she saw C.M. on the ground between two pipes in a vacant lot next to her home, and M.U. straddling one of the pipes. According to S.S., M.U. bent over "towards [C.M.'s] private area" with her tongue sticking out. (R. 52.) Before she could holler at M.U., S.S. said, M.U. leaned toward C.M. again. At that point, S.S. yelled M.U.'s name and M.U. got off the pipe. S.S. testified that C.M. then began "struggling to get his pants fixed. So, he was presentable enough to get up." (R. 54.) According to S.S., when M.U. came into her house, M.U. was crying and stated that "[C.M.] made me do it. [C.M.] made me do it." (R. 55.) S.S. testified that when she asked M.U. what C.M. had made her do, M.U. "point[ed] to her mouth and to her privates." (R. 55.)

M.U. testified that she remembered a time when she was playing with her friends A.T. and G.T. at S.S.'s house. M.U. testified that she was playing outside with a toy gun, that C.M. took the gun away from her, and that C.M. told her he would give it back to her if she would lick his "pee pee." (R. 21.) M.U. testified that she touched C.M.'s "pee pee" with her hand; that she licked C.M.'s "pee pee" with her tongue; and that C.M. put his hand in her clothes and touched her "pee pee" with his hand. (R. 16-17.) M.U. also testified that she saw C.M. pull A.T.'s clothes down, "put his thing in [A.T.'s] mouth," and touch A.T.'s "pee pee" with his hand. (R. 18-19.) M.U. identified C.M. in court as the person who had committed these acts. (R. 43.)

Tiffany Dean, a sexual assault nurse examiner at Children's Hospital in Birmingham, testified that she examined both M.U. and A.T. within 24 hours of the alleged abuse. According to Dean, M.U. had redness and a superficial laceration in her vaginal area which, Dean said, was consistent with M.U.'s allegation that a boy in the neighborhood had touched her, but that there was no evidence of vaginal penetration. Dean said that she found nothing "out of the ordinary" in her examination of A.T. (R. 93.)

On April 24, 2003, both M.U. and A.T. were interviewed by Sue Ashworth, an investigator with the Blount County Sheriff's Department, at the Blount County Children's Center. The statements M.U. and A.T. made to Investigator Ashworth were reduced to writing and the State introduced both at the delinquency hearing. M.U.'s statement reads:

"My Momma's name is P[.]

"[C.M.] pulled my pants down. [C.M.] is stupid. He was a friend til he pulled my pants down.

"(Child is difficult to understand, so mom came into room to help translate.)

"[C.M.] made me kiss his pee pee. I kissed it. He scared me. I tried to tell him no, but he wouldn't listen to me. He's strong and big, and I'm little.

"[A.T.] and [G.T.] were there. Just one boy was there, [C.M.]. [S.S.] saw [C.M.] make me kiss his pee pee. [C.M.] touched my pee pee with his hands, with his fingers. He was mean to me and it hurt. [C.M.] said that he was my boyfriend and I thought so. BF [boyfriends] are supposed to touch you on the pee pee — No. (Changes mind about answer.) They aren't supposed to hurt you. He put his pee pee inside my mouth and told me to lick it.

"[C.M.] made [A.T.] do it too. [G.T.] hid.

"[C.M.] wanted me to touch [A.T.'s] pee pee and I did. And he wanted [A.T.] to touch my pee pee, and she did.

"(We had been in the house and ...) [C.M.] said come outside. He touched me more than one time, more than 2 times. [C.M.] rubbed [A.T.'s] pee pee with his fingers.

"[C.M.] said not to tell. He said I couldn't tell anyone. He made me afraid.

"[C.M.] could get in trouble when his mom and dad get home.

"[C.M.] kissed my pee pee too. He did that to [A.T.] too. [S.S.] made [C.M.] leave and she locked the door.

"Nothing happened to [G.T.] She looked out and saw us."

(C. 49-50.) A.T.'s statement reads:

"I'm 4 years old. [G.T.] and [M.U.] and C[.] and A[.] are in the waiting room. C[.] is [M.U.'s] mom.

"[C.M.] touched my pee pee. When we were over in the pine cones. [G.T.] saw him do that, and she can tell you. [G.T.] and I were outside. [M.U.] was outside too. [C.M.] touched me with his hands and fingers inside my clothes. He touched me and [M.U.]

"[C.M.] didn't touch [G.T.]. I put my clothes on. He didn't pull my pants down, he put his hands inside my pants. He just pulled [M.U.'s] pants down. [C.M.] made me touch [M.U.] on her pee pee and made [M.U.] put her mouth on my peepee.

"[M.U.] put her mouth on [C.M.'s] pee pee. I saw [C.M.] put his mouth on her pee pee. He put his mouth on [M.U.'s] pee pee. I saw him pull her pants down. [M.U.] didn't see him pull mine down.

"[G.T.] saw D[.] outside.

"[C.M.] was bad. He got in trouble. He should get in more trouble. I don't like him, he's scary cause [M.U.] and I said we hate him because of what he did.

"I told my mom and my dad."

(C. 50.)

I.

The appellant contends that the trial court erred in allowing into evidence A.T.'s out-of-court statement.¹ He makes several arguments in this regard, only one of which was preserved for review.

A.

The appellant argues that A.T.'s out-of-court statement was inadmissible because, he says, (1) it was not shown to possess particularized guarantees of trustworthiness pursuant to §§ 15-25-32(2)b. and 15-25-37, Ala.Code 1975; (2) the juvenile court failed to make a determination, on the record and supported by specific findings, that the statement possessed particularized guarantees of trustworthiness as required by § 15-25-38, Ala.Code 1975; and (3) the juvenile court failed to make a determination, on the record and supported by specific findings, that A.T. was unavailable to testify under § 15-25-32(2)a., Ala.Code 1975, as required by § 15-25-38, Ala.Code 1975.

None of these arguments was presented to the juvenile court. Although the appellant objected to the introduction of A.T.'s statement, he did so on the grounds that he had not received the complete statement, and that the statement was not sufficiently corroborated as required by § 15-25-34, Ala.Code 1975. The appellant never argued to the juvenile court that A.T.'s statement was not trustworthy or that the court had failed to make determinations on the record that A.T. was unavailable to testify and that the statement possessed particularized guarantees of trustworthiness.

"`"The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial." Ex parte Frith, 526 So.2d 880, 882 (Ala.1987). "The trial court cannot be placed in error on grounds not asserted.... The court was required to pass only upon the ground of the objection specified by the appellant and those not announced are waived." Johnson v. State, 421 So.2d 1306, 1311 (Ala.Cr.App.1982).' Riddle v. State, 661 So.2d 274 (Ala.Cr.App.1994)."

Richerson v. State, 668 So.2d 130, 133 (Ala.Crim.App.1995). Therefore, these arguments were not properly preserved for review and this Court will not consider them.

B.

The appellant also argues that A.T.'s statement was inadmissible because, he says, he was not provided with the complete statement. Specifically, the appellant contends that although a written rendition of A.T.'s statement to Investigator Ashworth was provided to him, that written rendition did not include the interviewer's questions despite the fact that A.T.'s statement was not spontaneous, but was made in response to questions asked by Investigator Ashworth. According to the appellant, "[i]t is patently unfair to the accused, and a violation of § 15-25-35 for the State to fail to include the questions that elicited responses included in the statement that was ultimately introduced in the State's case." (Appellant's brief at p. 12.)

As quoted above, the statement that was introduced into evidence appears to be a transcription of what A.T. said to Investigator Ashworth during the interview on April 24, 2003, at the Blount County Children's Center, but it does not include the questions that Investigator Ashworth posed to A.T. during the interview. Investigator Ashworth testified that her interview with A.T. was not audiotaped or videotaped. She said that there is a video camera in the interview room that is connected to a closed-circuit television in the next room where people can watch the interview as it is taking place, but the interview was not recorded. According to Investigator Ashworth, a stenographer sat in the next room watching the closed circuit television and typed the content of the interview as it was taking place. The...