King v. State

• Decision Date: 24 June 2005
• Docket Number: CR-03-1704.
• Citation: 929 So.2d 1032
• Parties: Charles Thomas KING v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

929 So.2d 1032

Charles Thomas KING v. STATE of Alabama.

CR-03-1704.

Court of Criminal Appeals of Alabama.

June 24, 2005.

Rehearing Denied September 16, 2005.

Certiorari Denied November 10, 2005 Alabama Supreme Court 1041978.

Robert B. Tuten, Huntsville, for appellant.

Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.

COBB, Judge.

Charles King was indicted by a Madison County grand jury on two counts of first-degree sexual abuse for having sexual contact with his step-granddaughter, who was six years old at the time of the incidents. § 13A-6-66, Ala.Code 1975. He was convicted of both charges following a jury trial, and the trial court imposed 10-year concurrent sentences. The trial court also ordered King to pay a $2,500 fine for each count, $500 to the Crime Victims Compensation Fund for each count, court costs, and restitution. This appeal follows.

The evidence at trial tended to show the following. King had been married to Ruth, the victim's grandmother, for approximately 10 years. Ruth's daughter is the mother of the victim, E.M. E.M. and her younger brother visited with the Kings at their home once or twice each week. On an afternoon in May 2002, near the end of her first-grade school year, E.M. was sitting on a couch at home with her mother. E.M. suddenly began crying and told her mother that Grandpa¹ was always kissing and touching her and he pulled his pants down in front of her. E.M. told her mother she was afraid that she would go to jail, and she asked her mother not to tell anyone. E.M. said the devil made Grandpa do these things. E.M.'s mother contacted the police. E.M.'s mother testified that E.M. had expressed feelings of shame and guilt, and that E.M. believed she had done a "bad thing." (R. 128.)

E.M. testified at trial. She stated that King had touched her "private parts," where she goes to the bathroom. (R. 137-38.) E.M. testified that she had touched King's private part and "his titties." (R. 139.) These touchings occurred at King's house when she was in the first grade, she said.

Lucy McLean testified that she was an investigative interviewer employed by the Children's Advocacy Center and was working under contract to the Department of Human Resources. She investigated cases of alleged child sexual abuse. She testified about her education and experience and about the guidelines for conducting a forensic interview. McLean conducted a forensic interview of E.M. and determined that a more extensive evaluation was required. She made a referral for a forensic evaluation. The videotape of McLean's interview with E.M. was played for the jury.

Denise Houston met with E.M. while Houston was employed at the National Children's Advocacy Center. She testified at length about her education and work experience as a forensic evaluator, therapist, and trainer. She also testified as to the way she conducts a forensic evaluation of a child suspected of being abused. Specifically, she noted that the evaluation is conducted during the course of several sessions, with the initial sessions devoted to gathering general information from the parent and the child and to building rapport. Houston testified about the sessions she conducted with E.M.'s mother and with E.M.

Houston described E.M. as being distressed and reluctant to speak about what King had done, other than to tell Houston that "Grandpa broke a big rule," and that Grandpa made her "do something." (R. 186.) Later in the session, E.M. told Houston that King had forced her to touch "his weiner" or his "private spot" and that it got bigger when she touched it. (R. 191-93.) She said that she had seen her little brother's "weiner" when he was in the bathroom, and that King's "weiner" was bigger and wetter, and that it left "nasty, smelly stuff" on her hands. (R. 195.) E.M. further testified that King kissed her on the lips and put his tongue in her mouth, and that he made her put her mouth and tongue on his stomach and "titties." (R. 197.) Houston testified that E.M.'s statements were consistent with a victim of child sexual abuse.

Dr. Deborah Williams testified that she conducted a physical examination of E.M. The results of the examination were normal, and the doctor detected no problems with E.M.'s hymen or her genital or rectal areas.

George Johnson, an investigator with the Madison County Sheriff's Department, testified that he interviewed King after he saw the videotape of the forensic interview conducted by Lucy McLean. King was 67 years old at the time of the interview. He told the investigator that he had not had sex in a while due to some problems he had. King told him that E.M. was affectionate and liked to kiss everyone. King also stated that E.M. had walked into the bathroom and bedroom on more than one occasion and had seen him naked. He said E.M. had done this at other people's houses, too. King took three polygraph examinations; the results of the tests were inconclusive.

Ruth King, the victim's maternal grandmother, testified that she was married to King when the sexual abuse took place, but that she never saw King touch E.M. inappropriately. She stated that E.M. enjoyed being around King and that she expressed love for him. She said that she once found E.M. in the bathroom while King was in the shower. Ruth testified that the glass shower door was closed, but that King's naked body was visible through the door. Finally, she testified that, for the duration of their marriage, King was capable having erections and ejaculating, and that she had observed him with erections during 2001 and 2002.

King testified on his own behalf. He denied doing any of the things E.M. alleged he had done. King testified that he retired from the military as a lieutenant colonel with many commendations and awards. He married Ruth in 1990 and they divorced after E.M. made the allegations of sexual abuse. He acknowledged that E.M. and her brother got under the covers with him and Ruth for a few minutes in the morning on the days the children stayed at the Kings' house, but he said that he and E.M. just cuddled. When defense counsel asked King whether he had ever put his tongue on E.M., as some of the testimony had indicated; King responded, "No, sir, not that I can recall." (R. 294.) On cross-examination, in response to the prosecutor's question about whether he had ever kissed E.M. with an open mouth, King stated, "Not that I can recall, but I've—". (R. 323.) King testified that, on the morning E.M. was in the bathroom while he was in the shower, the water was running and he did not know E.M. had come into the bathroom. He knew only that Ruth yelled at E.M. for being in the bathroom and took her out.

King testified that he injured his groin in 1996 when he fell through rotten porch timbers and landed straddling a joist. He did not seek medical treatment at the time, but testified that he believed that the injury diminished his erectile functioning. In 1999 he asked his physician for a test to measure his testosterone level, and in 2003 he consulted a urologist regarding his erectile difficulties. He stated that, in 2001 and 2002, he could not have an erection and he could not ejaculate, although he said that he attempted to masturbate a few times each week.

I.

King first argues that § 15-25-31 et seq., Ala.Code 1975, the Child Sexual Abuse Victim Protection Act, is unconstitutional because it violates his right to confrontation and the Supreme Court's recent interpretation of that right, as set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). He also argues that the trial court erred to reversal when it permitted the State to introduce hearsay statements from the victim; he claims that Crawford precludes the admission of all hearsay statements unless a defendant was afforded the opportunity to cross-examine the witness at the time the out-of-court statements were made. King preserved these arguments for review by filing a pretrial motion to declare the statute unconstitutional and a pretrial motion in limine to prevent the State from introducing any hearsay statements. (C. 102-105.) King also objected at trial when the hearsay statements were offered. At the pretrial hearing on the motions, the State argued that, because the victim would testify at trial and would be available for cross-examination, King's right of confrontation was protected and Crawford did not apply. The trial court denied King's pretrial motions and his objections to the hearsay evidence offered during the trial. We agree with the State; the trial court's rulings were correct.

In Crawford v. Washington, the United States Supreme Court held that the Sixth Amendment's Confrontation Clause precludes the admission of testimonial hearsay evidence where the witness is unavailable to testify and the defendant has not had a prior opportunity for cross-examination. 541 U.S. at 68, 124 S.Ct. 1354. The Supreme Court clearly stated that the Confrontation Clause provides no bar to the admission of hearsay statements when the hearsay declarant testifies at trial:

"Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162 (1970). It is therefore irrelevant that the reliability of some out-of-court statements `"cannot be replicated, even if the declarant testifies to the same matters in court."' Post, at 74 (quoting United States v. Inadi, 475 U.S. 387, 390 (1986)). The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. (The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v. Street, 471 U.S. 409, 414 (1985).)"

541 U.S. at 59 n. 9, 124 S.Ct. 1354.

The victim's hearsay statements to which King...