J.D.S. v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: BOWEN
• Citation: J.D.S. v. State, 587 So.2d 1249 (Ala. Crim. App. 1991)
• Decision Date: 17 May 1991
• Parties: J.D.S. v. STATE. CR 89-1056.

Page 1249

587 So.2d 1249

J.D.S. v. STATE.

CR 89-1056.

Court of Criminal Appeals of Alabama.

May 17, 1991.

Rehearing Denied July 26, 1991.

Certiorari Denied Oct. 11, 1991

Alabama Supreme Court 1901727.

Thomas W. Harmon of Williams, Harmon & Hardegree, Anniston, for appellant.

James H. Evans, Atty. Gen., and James F. Hampton, Sp. Asst. Atty. Gen., for appellee.

BOWEN, Judge.

J.D.S., the appellant, was convicted of the second degree rape and the second degree sodomy of his daughter. He was given a concurrent sentence of five years' imprisonment in each case. The appellant raises four issues on this appeal from those convictions.

I.

At the appellant's trial for four sex crimes against his daughter, evidence of the appellant's sexual abuse of his stepson was properly admitted into evidence.

The appellant was charged in a four-count indictment with sodomy in the first degree "in the years of 1985 and/or 1986," with sodomy in the second degree "in the years of 1987 and/or 1988 and/or 1989," with rape in the second degree, and with incest. No dates were specified in the indictment for these last two offenses. However, in response to the appellant's motion for a more definite statement, the prosecutor indicated that these last two offenses occurred in 1988 and 1989. Each offense involved the appellant's daughter, who was ten years old in 1985.

Prior to trial, the prosecutor represented that he would introduce the testimony of the appellant's sexual abuse of his stepdaughter and his stepson:

"[T]he state does intend putting testimony of M.C. [stepdaughter], and T.G. [stepson].

"Offer their testimony--Ms. C. and Mr. G. are stepchildren who lived with the defendant as a family for most of their childhood years. Ms. C. and Mr. G. both somewhat unwillingly have come to our attention and have stated that the defendant molested them while they were children, that the molestation was an ongoing molestation over a period of six months to up to two years with the male child. And that the molestation was similar to what we have before us in this case now as far as oral intercourse with--forcing oral intercourse on the--with the female, and also oral intercourse with the male child, both give and take.

"The time frame is about ten years ago. The female is ... 24 now, took place about ten years ago when she was 14. The male, Mr. G.'s testimony I expect to be that it was a little less then ten years ago. The molestation took place somewhere between eight and nine years ago.

"The state would offer this as, basically, as a common scheme, plan by the defendant that he has molested his own children in the past and he has done so in this case also, that that common scheme or plan would be apparent and it would be one way it would be admissible testimony.

"I think based on the fact that they were children, his children, living in his household, and was an ongoing abuse would be sufficient reason that it is relevant and should be presented."

Relying on Ex parte Cofer, 440 So.2d 1121 (Ala.1983), defense counsel argued that the alleged abuse of the appellant's stepchildren "occurred ten years ago [and] it was too remote in time to be relevant in the current case." Defense counsel also argued that "the allegation is different in kind than the charge before the Court. Therefore, that would be an additional ground to--that it not be admissible based on relevancy."

The trial court denied the appellant's pretrial motion in limine which sought to suppress this testimony with the following comments:

"From the Court's reading of Ex parte Cofer, it appears that the real turning point in that case was the fact that the state presented evidence of prior sexual misconduct but of a different type from that with which the defendant was actually tried in the case on appeal. There was an offer of evidence of a rape on a first cousin some ten years prior to trial. He was being tried currently for a sex abuse charge.

"My understanding of the proffered evidence by the state in this particular case, State versus [S]., would be of the same type of sexual misconduct; that is acts of fellatio, forcing children under 16 years of age to commit acts of fellatio upon the defendant.

"The Court finds that to be testimony which well would fit within the exception to the rule of evidence that would prohibit evidence of other criminal activity, that this would show apparent common plan or scheme on the part of the defendant in having young children within his home victimized by forcing or compelling them in some way to commit deviate sexual conduct or activity upon him.

"And the Court finds the Cofer case not to be a hard and fast rule that there's some specific cut-off date at ten years. And the Court thinks that that would depend on a case by case analysis by the trial court.

"Again, we're dealing with a type of activity that many times goes unreported or is reported many times much later than the actual occurrence of the event for any number of reasons.

"And for those reasons, the Court denies the motion in limine as to that aspect."

At trial, the State proved on direct examination of the victim that the appellant first started "touching" and "rubbing" his daughter's "breasts and [her] private spot" in 1986, that the appellant's daughter performed fellatio on the appellant at the appellant's insistence during the years 1985, 1986, and 1989; that this fellatio occurred "whenever he had a chance ... which was probably every two weeks"; that the appellant first had sexual intercourse with his daughter on September 10, 1988; and that the appellant also had intercourse with his daughter on October 24, 1988, and on June 24, 1989. On cross-examination, the victim testified that the first act of fellatio occurred in 1986.

After the victim testified, defense counsel renewed his motion in limine and argued that "even the span of eight to nine years on the stepson would be inadmissible not only because of the time span, but because of the different nature of the charge, one involving a stepson and the other a natural daughter."

Immediately before the stepson testified, the prosecutor informed the trial court of the following:

"The male stepchild has indicated to me that he did not--was not forced to commit oral sex with the defendant, although the defendant did force himself upon him and commit the act on him. Just to make sure I'm in the area of the Court's ruling if that is not the exact same act, but it is the same sexual category.

"THE COURT: It falls in that category of deviate sexual intercourse.

"MR. HARMON [defense counsel]: ... This is clearly a different act because of the difference in the alleged acts as well as the remoteness of time. I think that under that case [Cofer ] this testimony would be inadmissible.

"THE COURT: Overrule the objection."

The prosecutor then presented the testimony of T.G., the appellant's 23-year-old stepson. T.G. testified that the appellant, "on quite a few occurrences, quite a few times," touched him in a way that made him feel uncomfortable. When asked to describe the touching, he stated that "it was like" early one morning, he was awakened by the appellant performing fellatio on him. These acts of sexual abuse occurred sometime during the time when he was 13-15 years old. From T.G.'s testimony, we conclude that the apparently ongoing sexual abuse of T.G. occurred during the years 1980-1982. The appellant's stepdaughter did not testify at trial.

Ex parte Cofer, 440 So.2d 1121 (Ala.1983), involved a prosecution of a defendant for the sexual abuse of his 16-year-old sister-in-law. In order to prove a common scheme, the State introduced testimony that the defendant had raped his first cousin approximately ten years before the date of the charged offense. The Alabama Supreme Court held "We hold that a single rape which occurred ten years prior to the present offense, as reprehensible as it is, is not evidence of a pattern or pre-existing design into which the present charge of sexual abuse fits. See Brasher v. State, 249 Ala. 96, 98-100, 30 So.2d 31, 32-34 (1947).

"Additionally, the prior rape was alleged to have occurred ten years before the present offense. Even if intent were in issue, this prior rape is too remote to be probative of the issue. Deason v. State, 363 So.2d 1001, 1005 (Ala.1978). In Deason, we were concerned with the proximity of an act subsequent to the one charged, but our admonition there that the acts be not too remote in time is applicable here."

Cofer, 440 So.2d at 1124. See also Butler v. State, 500 So.2d 470, 471-72 (Ala.Cr.App.1986) (in a prosecution for the sexual abuse of his stepson, evidence that the father sexually abused one of his daughters 12 to 13 years ago was too remote to show a pattern or intent); McClellan v. State, 571 So.2d 341, 344 (Ala.Cr.App.), writ quashed, 571 So.2d 345 (Ala.1990) (in a prosecution for sexual abuse of a stepdaughter, evidence that the father sexually abused a child, a cousin of the victim's mother, eight years before the charged offense was far too remote to satisfy the requisite test of relevancy).

"[I]t is generally agreed that ... the evidence of other crimes must be so related in time, place, and circumstance to the charged offense so as to have substantial probative value in determining the guilt of the accused." Annot., 2 A.L.R.4th 330, 337 (1980) (footnote omitted).

"[T]he test of relevancy ... is a prerequisite to admissibility under each of the exceptions [to the general rule against admissibility of prior offenses]. Ex parte Killough, 438 So.2d 333 (Ala.1983)....

"Evidence that the defendant committed two drug-related offenses more than 10 years before the subject charge [of the unlawful possession of marijuana] is far too remote to satisfy the requisite test of relevancy."

Ex parte Tomlin, 548 So.2d 1341, 1343 (Ala.1989).

Apparently, the appellant's argument on appeal that the evidence of the appellant's homosexual act with T.G....