Dilbeck v. State

Decision Date23 August 1991
Docket NumberCR-90-179
Citation594 So.2d 168
PartiesGregory DILBECK and Bobbie Dilbeck v. STATE.
CourtAlabama Court of Criminal Appeals

Lindsey Mussleman Davis, Florence, Don White, Moulton, and Norman Roby, Decatur, for appellants.

James H. Evans, Atty. Gen., Jack W. Willis, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Gregory Dilbeck was indicted by the June 1990 Lawrence County grand jury for five counts of sodomy in the first degree and four counts of sexual abuse in the first degree. Bobbie Dilbeck was indicted at the same time for two counts of sodomy in the first degree and four counts of sexual abuse. The jury returned a verdict finding both of the appellants "guilty as charged" in the indictment.

Gregory Dilbeck was sentenced to life imprisonment on counts I, II, VI, VII, IX, XIV, and XV of the indictment charging him with sodomy in the first degree; these seven life sentences are to run concurrently. He was sentenced to 10 years on counts III, IV, VIII, and XII, each charging sexual abuse in the first degree. The four 10-year sentences are to run concurrently with each other and consecutively to the 7 life sentences.

Bobbie Dilbeck was sentenced to life imprisonment on counts I and XI of the indictment, each charging sodomy in the first degree; the two life sentences are to run concurrently. She was sentenced to 10 years on counts IV, V, X, and XIII, each charging sexual abuse in the first degree. Each of the four 10-year sentences are to run concurrently with each other and consecutively to the 2 life sentences.

This case arose between August 1988 and February 1990 in Lawrence County, Alabama at a child day-care center operated by Bobbie Dilbeck. Gregory Dilbeck, Bobbie Dilbeck's son, was living at the house which served as a day-care center and as a residence for the appellants. On February 4, 1990, the parents of the children were notified of the allegations made by a parent of 2 children in the Dilbeck's day-care center and were instructed to make alternate arrangements for day care pending the investigation. Mrs. Dilbeck was notified that her license had been suspended effective February 7, 1990.

J.C. testified to "bad touches" which had been made by both appellants when he was at the day-care center. E.C., a six-year-old, who was in day care at the Dilbeck house, also testified to "bad touches" by Gregory Dilbeck. K.B., a five-year-old, also testified to "bad touches" given to him by Gregory Dilbeck. K.B. further stated that Bobbie Dilbeck had taken his clothes off one time and given him a whipping. K.B. also testified that Gregory Dilbeck had filmed some of the incidents.

A parent of two sisters testified to increased sexual awareness, nightmares, and bed wetting by one child. Two physicians, Dr. Couch and Dr. Kristi Mulchaley at Children's Hospital in Birmingham, Alabama, testified that upon examination of the children, they found nothing out of the ordinary.

Outside the presence of the jury, S.R., the mother of one of the alleged victims, testified as to the unavailability of her daughter, B.R., in accordance with § 15-25-37, Code of Alabama 1975. B.R. had told S.R., her mother, that Gregory had put lotion on his penis in B.R.'s presence.

Dr. Laura Beverly, a resident in pediatrics at Children's Hospital in Birmingham, Alabama, testified that she had examined B.R. and noted no trauma to the genital or anal regions or any other evidence that indicated sexual activity. Dr. Kristi Mulchahey, a children's obstetrician/gynecologist at Children's Hospital, testified that she examined J.C. and that other than the fact that the child had masturbated, his examination was within normal limits.

Paul Cain, an investigator for the Lawrence County sheriff's department, participated in interviews with the alleged victims in the case. He testified he had been called by the Department of Human Resources in February 1990. He obtained a warrant on February 2, 1990, for Gregory Dilbeck based upon allegations of sexual abuse and contact. In the search of the Dilbeck house/day-care center, the following items were discovered: 13 videotapes, of which 12 were not offensive; a playboy centerfold; and pink lotion.

The mother of J.C. and A.C. testified that J.C. had told her "Miss Bobbie" and Gregory had touched him and threatened him. She went to an attorney, who referred her to the district attorney, who in turn referred her to the Department of Human Resources.

D.B., mother of K.B., next testified that her child was in the day-care center for three months. She testified that K.B. had told her that Bobbie and Gregory Dilbeck took children upstairs during naptime and that he had been filmed naked with Bobbie Dilbeck naked.

Gregory Dilbeck testified that he had never abused the children and that the children liked him. He testified further that he had never seen his mother sexually or physically abuse the children.

Will Dilbeck, Bobbie's husband and Gregory's father, testified that Bobbie was very protective of the children in the day-care center and was careful to protect them.

Bobbie Dilbeck testified that she shared a warm relationship with the children and that the children had never observed any sexual acts or any sexual material while in the day-care center.

I

Ala.Code 1975, § 15-25-31, provides:

"An out-of-court statement made by a child under twelve years of age at the time of the proceeding concerning an act that is a material element of any crime involving child sexual abuse, as defined in section 15-25-38 below, which statement is not otherwise admissible in evidence, is admissible in evidence in criminal proceedings, if the requirements of section 15-25-32 are met."

Section 15-25-32 provides:

" § 15-25-32. Same--Requirements of admissibility.

"An out-of-court statement may be admitted as provided in section 15-25-31, if:

"(1) The child testifies at the proceeding, or testifies by means of video tape deposition as provided by section 15-25-2, or testifies by means of closed circuit television as is provided in section 15-25-3, and at the time of such testimony is subject to cross-examination about the out-of-court statements; or

"(2) a. The child is found by the court to be unavailable to testify on any of these grounds:

"1. The child's death;

"2. The court finds that there are reasonable grounds to believe that the defendant or someone acting on behalf of the defendant has intentionally removed the child from the jurisdiction of the court;

"3. The child's total failure of memory;

"4. The child's physical or mental disability;

"5. The child's incompetency, including the child's inability to communicate about the offense because of fear or a similar reason; or

"6. Substantial likelihood that the child would suffer severe emotional trauma from testifying at the proceeding or by means of closed circuit television; and

"(b) The child's out-of-court statement is shown to the reasonable satisfaction of the court to possess particularized guarantees of trustworthiness."

A

The appellants first contend that the court erred to reversal in not requiring that their counsel be provided with out-of-court statements of two of the alleged victims until after the hearing to declare the two children unavailable.

Ala.Code 1975, § 15-25-35, provides:

"The proponent of the statement must inform the adverse party of the opponent's intention to offer the statement and the content of the statement sufficiently in advance of the proceeding to provide the defendant with a fair opportunity to prepare a response to the statement before the proceeding at which it is offered."

This record establishes that on August 16, 1990, and August 17, 1990, the State filed a motion to declare certain witnesses to be unavailable for testimony. A hearing was held on August 23, 1990, pursuant to § 15-25-30 et seq., Code of Alabama 1975.

Before the proceeding, the appellants objected on the ground that they had not been informed of the contents of the statements which were the basis of the hearing, in compliance with § 15-25-35, and that consequently they had not had a fair opportunity to respond to the statements before the proceeding began. The trial court denied the motion on the basis that the first question to consider was whether the child would be available to testify and, then, if the court determined that the child would be unavailable, it would get to the question of the statement itself, which would be a separate procedure.

After evidence given by experts concerning the availability of the witnesses, the court declared that T.C. and B.R. would be unavailable to testify. The State then filed with the court the substance of the out-of-court statements of B.R. and T.C. These statements were made available to the appellants on August 23, 1990, the day of the hearing.

This court, in Fortner v. State, 582 So.2d 581 (Ala.Cr.App.1990), cert. denied, 582 So.2d 587 (Ala.1991), addressed this same question. In that case, the defendant argued that the record did not show that the State had given the notice required by § 15-25-35, Code of Alabama 1975. This court held that the defendant in that case failed to preserve the issue for review, but went on to say: "... because a lengthy hearing was held on the admissibility of the out-of-court statements before they were offered, because it appears that defense counsel was sufficiently prepared to oppose the admission of the statements, and because counsel did, in fact, file a written motion to suppress the statements before they were introduced into evidence, we find the defendant had notice adequate to allow him 'a fair opportunity to prepare a response to the statement[s].' " Fortner, 582 So.2d at 586.

In the instant case, the availability hearing was held four days before the trial began. The hearing was lengthy and the appellants were able to...

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