Cofer v. State

• Decision Date: 01 February 1983
• Docket Number: 6 Div. 918
• Parties: Billy Ray COFER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1116

440 So.2d 1116

Billy Ray COFER v. STATE.

6 Div. 918.

Court of Criminal Appeals of Alabama.

Feb. 1, 1983.

Rehearing Denied March 1, 1983.

Carl E. Chamblee, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Gregory J. Robinson, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Sexual abuse in the first degree; sentence: five years' imprisonment.

On July 25, 1981, the prosecutrix, who was then sixteen years old, went to her brother's trailer to get some medicine for her father. Because she was unable to find the medicine, the prosecutrix went next door to her brother-in-law's home to attempt to use the telephone. Her brother-in-law, the appellant herein, met her at the door, invited her in, and told her she could use the telephone. As the prosecutrix attempted to leave after completing her telephone call, appellant closed and locked the door and told the prosecutrix he wanted "to feel" her. Appellant grabbed the victim, began to kiss her, and then threw her onto a loveseat in the living room. Appellant lay beside her on the sofa and moved his body toward her. He then picked her up and carried her into the bedroom and threw her onto the bed. In the prosecutrix' words, the following then occurred:

"He come down on top of me and he was kissing me and everything, again, I was telling him to quit, I told him if he cared anything about my sister he wouldn't be doing that and then he pulled my shorts off and I was fighting him and I told him I had to get my father's medicine to him within thirty minutes and he told me that it wouldn't take that long and then he just kind of slid my panties out of the way and starting sticking his finger in me and I was hollering and telling him to quit and he was just hunching on my legs and stuff. I told him I had to go and he just quit, he said well, that is all I wanted." (R. 31)

The prosecutrix put her shorts on and then fled from the house.

I

Appellant argues reversible error occurred when the trial judge allowed the State to introduce on rebuttal, over appellant's objection, evidence proving appellant had committed a different sexual offense, upon a third party, approximately ten years prior to the immediate offense. The State's rebuttal witness testified she was also related to appellant, as his first cousin, and that she had been raped by him, at her home, in 1972. She described the attack as follows:

"He opened the door and pushed me all the way through the house to the bedroom.

....

"He pushed me down on the bed and he started tearing--I had my housecoat on with my panties and bra and he tore my clothes off of me and he beat me in the face and he beat me in the breast, and he put a pillow over my face and tried to smother me and told me if you ever tell a word of this I will kill you.

....

"His private parts entered mine twice, the whole time he was beating me and biting me and his fingers entered me, I don't know how many times, the whole time I was screaming then he put the pillow over my face and tried to smother me two or three different times to keep me from screaming."

(R. 144-145)

Appellant objected to the admission of the above testimony on grounds of remoteness, improper rebuttal, incompetency, irrelevancy, and immateriality.

Evidence of collateral acts or offenses, which are themselves similar to the offense being tried, may be admissible as relevant and material in proving the intent with which the accused acted on the occasion in question. Howton v. State, 391 So.2d 147 (Ala.Cr.App.1980).

As to appellant's remoteness objections, admissibility of evidence because of remoteness is a relative standard, varying in its application according to the facts of each case. Palmer v. State, 401 So.2d 266 (Ala.Cr.App.), cert. denied, 401 So.2d 270 (Ala.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982). The issue of remoteness is analyzed in Smitherman v. State, 33 Ala.App. 316, 318, 33 So.2d 396, 398 (1948) as follows:

"Ordinarily, remoteness of time affects the weight and probative value of evidence rather than its admissibility. It rests largely in the enlightened discretion of the court whether or not such proof will be allowed. Remoteness has regard also to factors and considerations other than mere lapse of time. It results, therefore, that it is practically impossible and not at all accurate to attempt to state a fixed rule or standard with particular reference to the time element. Of course it can be said with certainty that the tendered evidence must not be so remote in point of time as to be without causal connection or logical relation to the main event."

Remoteness of time alone does not render a prior, similar act or offense inadmissible. Yet, the trial court's discretion in admitting evidence does not extend to admitting evidence that is so remote as to time or circumstances that its relevance or materiality must rest in conjecture and speculation. White v. State, 380 So.2d 348 (Ala.Cr.App.1980).

Where the competency of evidence is doubtful because of remoteness, the better practice is to admit the evidence, leaving it to the jury to determine its credibility and weight. If the questioned evidence tends to prove a fact for the jury's determination, however slight that evidence may be, it should be admitted as relevant. White, supra.

While a span of ten years between acts bears close scrutiny, it is not beyond the pale of reason. Demmert v. State, 565 P.2d 155 (Alaska 1977); Maestas v. State, 224 N.W.2d 248 (Iowa 1974). See Annot. 88 A.L.R.3d 8 (1978); Palmer, supra (involving a span of five years). Because of the testimony's highly probative nature in illuminating appellant's intent, as discussed infra, we find the trial court did not abuse its discretion in overruling appellant's objection as to remoteness.

We note the prosecutrix' version of the events, when compared with the prior rape described by the State's rebuttal witness, indicates both assaults occurred on young female relatives of appellant who found themselves alone with appellant. As well, both followed similar patterns, with appellant throwing the victims onto the bed while evidencing a preoccupation with putting his finger inside the victims. While perhaps these facts alone might not be sufficient to warrant admitting the evidence as tending to prove an identity issue, see Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 (1975), they do bare strongly in judging the relevancy and materiality of the evidence as to remoteness in proving appellant's intent. See also Smith v. State, 409 So.2d 455 (Ala.Cr.App.1981).

Appellant took the stand and testified in his own behalf. He recalled the occasion of the prosecutrix using his telephone, but denied any sexual abuse, stating rather that they had engaged in a heated argument over a prior incident involving baby sitting.

Appellant described his actions and intent in so acting on the occasion in question as follows:

"All right. Now, you said you had not seen Connie since that night up until the time she walked in on this occasion?

"No, sir, I sure hadn't, I had been laying for her.

"Q Now, on this occasion when she was up there punching the phone, what did you do if anything?

"A Well, I got ready to bless her out and that is exactly what I proceeded to do when she got off of this phone.

"Q Where were you standing?

"A I was standing right in the doorway.

"Q The doorway going into your house?

"A That's right."

(R. 138-139)

While appellant admits an altercation, at least verbally, occurred, and that he in fact "had been laying for her," he denied that any sexual motivation existed, or that any sexual encounter occurred. Thus, while appellant admitted the confrontation and that he "was standing right in the doorway," he denied his actions were sexually motivated.

In discussing the intent exception to the general rule against admitting other offenses, this Court in Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326 (1973) stated:

"One of the exceptions is that the other crime is admissible to show criminal intent. That issue, not identity, is here involved. Judge McElroy elucidates intent to mean the state of mind of any person at the time he does the act--the act together with such state of mind constituting the charged crime. It may be an intentional doing of the act as distinguished from an inadvertent doing of the act, or we might add, a casual or an isolated instance that found expression in an inept suggestion or approach. Judge McElroy, supra p. 168, further said, with logic and reason, that: 'Because the unintentional doing of an act is abnormal and unusual, the more a person does other acts similar to the act in question, the greater likelihood that the act in question was not done inadvertently. Therefore, in certain crimes the state may prove accused's doing of similar acts as tending to show that in doing of a now charged act, he had that intent that is an element of the now charged crime.' "

We find that the evidence of the prior rape was admissible for the purpose of proving the criminal intent and negating any innocent intent or any other intent as regards the act committed upon the prosecutrix. McKenzie v. State, 250 Ala. 178, 33 So.2d 488 (1947); O'Berry v. State, 361 So.2d 1132 (Ala.Cr.App.), cert. denied, 361 So.2d 1135 (Ala.1978); Howton, supra.

Lest there be any doubt that intent is an issue under a charge of first degree sexual abuse, we set forth the following from Parker v. State, 406 So.2d 1036, 1039 (Ala.Cr.App.) cert. denied, 406 So.2d 1041 (Ala.1981):

"On its face, § 13A-6-66, fails to state any requisite culpable mental state. However, the term 'sexual contact' as defined in § 13A-6-60(3), and used in the above statute, requires that the touching be done for the purpose of gratifying the sexual desire of either party. Therefore, it is incumbent upon the State to establish intent to gratify the sexual desire of either party in order to complete proof of the crime."

Appe...