King v. State

• Decision Date: 21 September 1990
• Docket Number: 8 Div. 371
• Citation: 574 So.2d 921
• Court: Alabama Court of Criminal Appeals
• Parties: Terry Drew KING v. STATE.

Page 921

574 So.2d 921

Terry Drew KING v. STATE.

8 Div. 371.

Court of Criminal Appeals of Alabama.

Sept. 21, 1990.

Rehearing Denied Nov. 16, 1990.

Certiorari Denied Feb. 15, 1991

Alabama Supreme Court 1900372.

Fulton S. Hamilton, Huntsville, for appellant.

Don Siegelman, Atty. Gen., and N.H. Williams, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, Terry Drew King, was convicted of two counts of rape in the first degree, a violation of § 13A-6-61, Code of Alabama 1975, and two counts of sexual abuse in the first degree, a violation of § 13A-6-66, Code of Alabama 1975. Appellant was sentenced to two terms of life imprisonment on the rape counts and was sentenced to two 20-year terms on the sexual abuse counts, all of which were to run concurrently.

The victim, a four-year-old girl, testified that on October 29, 1982, she was told by her father, the appellant, to come to her bedroom. The victim testified that the appellant pulled her panties down, pulled his pants down and then laid on top of her. She further testified that the appellant then placed his "ding-dong" in her "kitty cat." (The victim referred to a penis as a "ding-dong" and a vagina as "kitty cat.") The victim's mother was not at home when these events took place. Only the victim and her brother were at home with their father at the time.

I

Appellant initially argues that the trial court erred in denying his motion for judgment for acquittal at the close of the State's case. He cites several reasons why there was insufficient evidence to convict him of the offenses charged in the indictment. Appellant first contends that the State did not prove venue. The appellant states that this is an essential element of proof for the State. Initially, we note that this was never brought to the attention of the trial judge, and no adverse ruling was made. Appellant's counsel made no motion concerning lack of venue after the close of the State's case, nor was lack of venue stated as a reason in counsel's written motion for judgment of acquittal.

However, even had this argument been brought to the attention of the trial judge, appellant would not prevail. The record contains numerous references to locations in the City of Huntsville. The victim's mother gave her address as Huntsville, Officer Blakemore mentioned the City of Huntsville on several occasions, and Dr. Andrew Donbro stated that he treated the victim at the Humana Hospital emergency room in Huntsville. From these references, the jury could reasonably infer that the offenses took place in the City of Huntsville, Madison County. "Venue may be proven by circumstantial evidence as well as by direct evidence." Lofton v. State, 515 So.2d 137, 140 (Ala.Cr.App.1987). As this court stated in Coleman v. State, 423 So.2d 276 (Ala.Cr.App.1982), "In a criminal case, proof of venue is sufficient if it can be reasonably inferred by the jury from the fact and circumstances adduced." Coleman, 423 So.2d at 279.

II

Appellant next argues that the State failed to prove the elements of the offenses charged in the indictment. Appellant was charged with two counts of rape in the first degree and two counts of sexual abuse in the first degree. The indictment reads as follows:

"TERRY DREW KING, whose name is unknown to the Grand Jury other than as stated, a male, did engage in sexual intercourse with [a child], a female, who was less than twelve years of age, he, the said, TERRY DREW KING, whose name is unknown to the Grand Jury other than as stated, being sixteen years or older, in violation of § 13A-6-61 of the Code of Alabama, against the peace and dignity of the State of Alabama.

"Count Two:

"The Grand Jury of said County charge, that before the finding of this indictment, TERRY DREW KING, whose name is unknown to the Grand Jury other than as stated, a male, did engage in sexual intercourse with [a child], a female, by forcible compulsion, in violation of § 13A-6-61 of the Code of Alabama, against the peace and dignity of the State of Alabama.

"Count Three:

"The Grand Jury of said County charge, that before the finding of this indictment, TERRY DREW KING, whose name is unknown to the Grand Jury other than as stated, he being sixteen years of age or older, did subject to sexual contact [a child], who was less than twelve years of age, in violation of § 13A-6-66 of the Code of Alabama, against the peace and dignity of the State of Alabama.

"Count Four:

"The Grand Jury of said County charge, that before the finding of this indictment, TERRY DREW KING, whose name is unknown to the Grand Jury other than as stated, did subject [a child] to sexual contact by forcible compulsion, in violation of § 13A-6-66 of the Code of Alabama."

Appellant argues that the state failed to prove counts two and four as alleged in the indictment, since, he says, no forcible compulsion was shown. Appellant contends that there was no evidence of any resistance.

" 'The force necessary to be used, to constitute the crime of rape, need not be actual, but may be constructive or implied. An acquiescence to the act obtained through duress or fear of personal violence, is constructive force, and the consummation of unlawful intercourse by the man thus obtained would be rape.' "

Flanagan v. State, 533 So.2d 637 (Ala.Cr.App.1987), quoting from Weatherford v. State, 369 So.2d 863 (Ala.Cr.App.), writ denied, 369 So.2d 873 (Ala.1979), cert. denied, 444 U.S. 867, 100 S.Ct. 141, 62 L.Ed.2d 91 (1979).

As Judge McMillan stated in Parrish v. State, 494 So.2d 705 (Ala.Cr.App.1985): "When the issue of sufficiency of the evidence is raised in a sexual assault case, questions involving resistance ... must be viewed 'in the frame of the age of the assaulted girl.' " Parrish, 494 So.2d at 710. Whether forcible compulsion existed is a question of fact for the jury to decide after looking at the totality of the circumstances. See Flanagan, supra; Parrish, supra.

In the instant case the four-year-old victim testified that her father, the appellant, pulled her pants down and that she tried to pull them back up; she said she was crying and that her father was pushing her hands away. This is sufficient evidence for the issue of forcible compulsion to be presented to the jury for its determination.

Appellant also argues that there was no evidence of penetration, and thus, he should be acquitted of counts one and two in the indictment. The record reads as follows:

"Q--When you were laying on the bed like this, did your daddy touch your kitty cat?

"A--Yes.

"Q--What did he touch your kitty cat with?

"A--His ding-dong.

"Q--And can you tell me what he did with his ding-dong?

"A--(Witness demonstrates by placing male doll on top of female doll.)

"Q--He put it in your kitty cat; is that what you're trying to show me?

"A--(No response.)

"Q--Why don't you tell me what he did.

"A--(Witness further demonstrates with dolls.)

"Q--He put his ding-dong in your kitty cat?

"A--(Witness nods head in the affirmative.)

"Q--Can you tell me what that felt like....?

"A--Water.

"Q--Come back up here and sit down; okay. (Witness complies.)

"Q--It felt like water?

"A--Yeah."

Appellant contends that the correct form was not used to show that penetration occurred. As this court stated in Swint v. State, 455 So.2d 285, 286 (Ala.Cr.App.1984): "[The] nature of the penetration that is essential for a rape conviction need not be proved in any particular form of words." "Whether an actual penetration is accomplished is a question of fact to be determined by the jury." Rowe v. State, 421 So.2d 1352, 1356 (Ala.Cr.App.1982); see also, Jackson v. State, 390 So.2d 671 (Ala.Cr.App.), writ denied, 390 So.2d 675 (Ala.1980).

In the instant case, the jury not only had the testimony of the four-year-old victim but also that of Mrs. King, a representative of the Department of Human Resources. Mrs. King testified that the victim told her that the appellant put his "ding-dong" in her "kitty cat." Dr. Theresa Spalding who examined the victim after the incident testified that the normal vaginal opening of a four-year-old girl is 4 millimeters and that the victim's was 7 millimeters. There was sufficient evidence for the matter to be presented to the jury.

III

The appellant next argues that the trial court erred in denying his motion for a new trial based on the use of allegedly perjured testimony. Appellant contends that the victim's mother perjured herself at trial and that the jury's verdict would have been different if her perjured testimony had not been used.

In the instant case, an attorney, not the one who represented the appellant at trial, testified at the hearing on appellant's motion for new trial that the mother of the victim, who was also the appellant's wife, came to his office approximately a week after the appellant was found guilty and made a statement to him saying that she told the victim to lie in court; he read that statement into evidence. He also stated that the appellant's wife gave him an affidavit that she wanted filed in the court. This affidavit, however, was not signed. The judge paraphrased the events in his written order:

"The attorney stated to the Court, in summary, that Mrs. King told him that the defendant was in fact not guilty of the acts of which he had been convicted; that she had been intimidated into testifying for reasons other than the fact that she believed him to be guilty of any such acts against her daughter."

As our Supreme Court recently stated in Ex parte Frazier, 562 So.2d 560, 569-70 (Ala.1989) "In order to grant a motion for new trial alleging perjured testimony, the trial court must be reasonably well satisfied 1) that testimony given by a witness at trial was false; 2) that there is a significant chance that had the jury heard the truth, it would have reached a different result; 3) that the evidence tending to prove the witness's perjury has been discovered since the trial; and 4) that that evidence could not have been...