Culver v. State

• Decision Date: 30 May 2008
• Docket Number: CR-06-0468.
• Citation: 22 So.3d 499
• Parties: Brian Scott CULVER v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

22 So.3d 499

Brian Scott CULVER v. STATE of Alabama.

CR-06-0468.

Court of Criminal Appeals of Alabama.

May 30, 2008.

Rehearing Denied August 22, 2008.

Herbie Brewer, Birmingham, for appellant.

Troy King, atty. gen., and Madeline H. Lewis, asst. atty. gen., for appellee.

PER CURIAM.

In March 2004, Brian Scott Culver was indicted by a Jefferson County grand jury for one count of second-degree domestic violence, a violation of § 13A-6-131, Ala. Code 1975; one count of furnishing drugs to a minor, a violation of § 13A-12-215, Ala.Code 1975; and two counts of possession of obscene matter containing a visual reproduction of a person under the age of 17 years, violations of § 13A-12-192(b), Ala.Code 1975. The jury found Culver guilty of the two counts of possession of obscene matter, but acquitted him of domestic violence and furnishing drugs to a minor. The trial court sentenced Culver to 10 years' imprisonment for each of his convictions, the sentences to run concurrently.

The evidence adduced at trial indicated the following. In November 2003, Culver was living at a residence in Hoover that he shared with his wife, S.B., her son, and her daughter, K.W.,¹ who was then 13 years old. Culver and S.B. had married in February 2003, and Culver was K.W.'s stepfather. Sometime after midnight on November 11, 2003, Culver listened on an extension telephone to a conversation between K.W. and her boyfriend, and he learned that the couple had been sexually active. Culver informed S.B., and she also listened to some of the telephone conversation. Culver and S.B. then confronted K.W. Culver insisted that they speak to the boyfriend and his parents, and he drove to the boyfriend's house at approximately 2:00 a.m. that morning; S.B. and K.W. accompanied Culver. S.B. spoke to the boyfriend's father, and they agreed that they would watch their children more closely and keep in contact with one another.

When S.B., K.W., and Culver returned to the residence, they went into the room next to K.W.'s bedroom that the family used as a playroom and as an office. S.B. talked to K.W. about her sexual activities while Culver typed on the computer. S.B. testified that Culver called K.W. a slut and a whore and that he was very angry and agitated. Culver got up from the computer and got a telephone book, looked through it for a telephone number, and then left the house. S.B. and K.W. looked at the computer after Culver left, and they saw that he had been conducting Internet searches for stun guns.

K.W. testified that later that day, sometime during the afternoon, she and Culver were at the residence alone, and she was asleep on the couch. According to K.W., Culver woke her up and gave her two blue pills. K.W. said that Culver told her that she needed to take them because she had a headache. K.W. said that she took one pill and threw the second one into the garbage can in the kitchen.

K.W. said that late that evening, near midnight, she was awakened in her bed by what felt like an electrical shock to her upper back. When she awoke, she discovered that Culver was in bed beside her, beneath the covers. According to K.W., he appeared to be shoving something underneath the pillow when she first saw him in her bed, but she did not see an object. K.W. said that Culver was wearing shorts and a tank top, and that he had a stethoscope around his neck; according to K.W., Culver rubbed her back and told her not to say anything. K.W. then got out of the bed and, when she did, she saw a bag that looked like a shaving kit on the floor beside her bed. K.W. said that she also noticed other items around her bed, and that she saw Culver pushing those items under her bed. K.W. left her bedroom, went to the kitchen to get a drink of water, and then went to the master bedroom where her mother was sleeping. K.W. told S.B. that Culver had shocked her, but when Culver came into the master bedroom, he denied doing anything to K.W. K.W. testified that she then stated to Culver, "`Yes, you did. I woke up, and you were beside me, and you hurt me.'" (R. 928.)

Culver and S.B. argued over the incident, and then S.B. and K.W. went to K.W.'s bedroom, where they found several items in a clear box under her bed, including "sex toys," condoms, pornographic magazines, and a vaginal syringe. (R. 929.) K.W. said that her mother pushed the syringe and that Vaseline-brand petroleum jelly and a brown pill came out. According to K.W., she and her mother also found Vaseline on the headboard of K.W.'s bed. K.W. testified that, although he initially denied any involvement, Culver eventually admitted that he had put all of those items in her bedroom. S.B. and Culver continued to argue, K.W. said, and Culver finally told S.B. that he was going to leave. Culver told S.B. that she could stay at the house with her children and that he would move into their house at Smith Lake.

At that point, Culver gathered a variety of items and put them into his vehicle. K.W. said that he put the clear box that had been beneath her bed into his vehicle but that she took it out and hid it in the bushes. After Culver left, S.B. telephoned the police, and several officers came to the residence. K.W. said that police officers searched the house, photographed her back where she had been shocked, and photographed her hands. When Culver returned to the residence before 6:00 a.m the following morning with clothing that belonged to S.B. and the children from the house at Smith Lake, the police arrested him on a charge of domestic violence.

During the search of the residence in the early morning hours of November 12, 2003, police officers found seven Polaroid photographs; five of the photographs depicted a female's genitalia and two photographs depicted a male's genitalia. The photographs were found inside two envelopes that had been placed between two books on a bookshelf in the playroom/office located next to K.W.'s bedroom. The Polaroid photographs were later shown to K.W., and K.W. identified herself as the female in the photographs. K.W. stated that she recognized the razor burn on her shaved genital area and that she recognized her hands in the photographs, including her fingernail polish. K.W. also testified that she recognized the sheets depicted in some of the photographs as being sheets that had been used on the bed Culver and her mother shared at their lake house. K.W. testified that her mother had purchased the sheets for Christmas in 2002. The police also showed each of the Polaroid pictures to S.B., and S.B. identified K.W. and Culver in the photographs based on her knowledge of certain of their physical characteristics. S.B. also identified the sheets in the Polaroid pictures as the sheets she had purchased as a Christmas gift for Culver in 2002 and that they kept at the lake house. K.W. testified that she and Culver had stayed at the lake house without S.B., and that, on more than one of those occasions, she had gone to sleep on the couch in the lake house and she had awakened in the bed her mother and Culver shared, but she did not know how she got into the bed. K.W. remembered the sheets depicted in the photographs being on the bed on one of the occasions when this occurred.

In addition, when police officers first arrived at the residence, S.B. gave an officer what she described at trial as a vaginal syringe that she had found in K.W.'s room. According to S.B., the syringe contained "KY jelly or petroleum stuff" and a pill. (R. 1369.) The pill S.B. alleged to have found inside the syringe was later determined to be a prescription sleep aid. Also recovered during the search of the residence were adult magazines and a Polaroid camera in a storage room in the attic that was accessed through K.W.'s bedroom. A Raptor-brand stun-gun box was recovered from the master bedroom closet. In the playroom/office next to K.W.'s bedroom, police recovered a bottle of Aleve brand pain reliever that had several blue pills inside. The pills were later tested and determined to be prescription medication, Xanax and Valium. A pill later determined to be Xanax was recovered in the garbage can in the kitchen. K.W. underwent an examination to assist in determining whether she had been sexually assaulted, and samples of her blood and urine were taken. The physical examination revealed no signs of sexual abuse, but test results revealed the presence of the prescription medication Valium in K.W.'s blood.

The police told S.B. to note anything unusual she found in the house and to inform them of anything she found. On November 13, 2003, S.B. turned over to the police an 8mm video camera and a Polaroid camera that she found at the residence. The police conducted a second search of the residence on November 14, 2003, and an 8mm-format videotape was found in a storage room that was accessed through the walk-in closet in the master bedroom. The police officer who found the videotape testified that it had not been in plain view when he entered the storage room, but that he had found the videotape in a corner.

The videotape was played for the jury, and we have reviewed the tape. The first portion of the videotape depicted a female on her back with her legs parted. Only the genitals, which appear to have been shaved, and the uppermost portion of the inner thighs were visible in most of the videotape; a portion of the buttocks and a portion of the lower abdomen were visible in some parts of the videotape, as the camera was repositioned and those portions of the body were filmed. The female's hands were resting motionless above her pubic area, with the fingers slightly curled. Specks of what appear to be fingernail polish were visible. The female was lying on a blue sheet or blanket that had a white imprint. The body appeared to have been covered above the abdominal area. A male's hands are also depicted in the videotape; subject to certain objections he made at trial, Culver stipulated that he was the man depicted in...