Long v. State, 5 Div. 432

• Decision Date: 01 May 1979
• Docket Number: 5 Div. 432
• Citation: 370 So.2d 354
• Parties: Reuben LONG v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 354

370 So.2d 354

Reuben LONG v. STATE.

5 Div. 432.

Court of Criminal Appeals of Alabama.

May 1, 1979.

Milton C. Davis, Tuskegee, for appellant.

William J. Baxley, Atty. Gen. and J. Bernard Brannan, Jr., Asst. Atty. Gen., for the State.

DeCARLO, Judge.

This is an appeal by Reuben Long, an indigent, who was convicted of rape by a circuit court jury in Macon County, and sentenced to ten years imprisonment.

During trial, appellant filed a motion to exclude the State's evidence, and that motion, along with his subsequent motion for a new trial, was denied. An application for probation was made and denied and notice of appeal was given.

The pertinent facts in this case are that the victim was a student at the Macon County Retardation Rehabilitation Center, whose director is Mrs. Sally Lowe Richardson. Mrs. Richardson testified that the school is designed for people who are retarded and physically handicapped. She stated that on May 21, 1976, the victim was a student at the center, classified as "educable mentally retarded," and was considered a person of "mild retardation."

Mrs. Richardson stated that the appellant, Reuben Long, was employed by the center, and that May 21st was his "last day of employment."

The victim's mother testified that her daughter was twenty years of age at the time of the incident and had been attending "Retarded and Rehabilitation Activities Center" for approximately three years. Her mother stated that she had to "see for her because she don't know. . . . She don't understand nothing."

Her mother testified that the day in question was the last day of school and that her daughter usually arrived home "about twenty minutes after three" in the afternoon. On this particular day, however, she arrived later than usual. Her mother stated that her husband, the victim's father was on the porch at the time the bus stopped to allow her daughter to get off, but that she (the victim's mother) was not on the porch at the time. When she learned from her husband that the bus was approaching, she went to the porch but was unable to stop the bus after her daughter got off.

After the victim left the bus and came to the house, her mother stated that she had noticed that "(s)he wasn't properly dressed, her clothes hanging all off her they were dirty, and I asked her what had happened." Her mother stated that the victim had then made a complaint of what had occurred. Her mother said that she then asked her daughter to undress. Later, her daughter showed her the location at which the offense had occurred. The next day the mother carried the victim to Dr. Storey in Farmville, Alabama.

The victim testified that she was twenty-two years old and attended the M.C.C.R. School which Mrs. Richardson was "the head of." She acknowledged that she had been going to the school for the last three and a half years.

During the trial, she identified the appellant as the person who drove the school bus and said that he was driving the bus on the last day of school, when the rape occurred. Further, she said that on the day of the offense she was the last student on the bus, and that the appellant's son was on the bus at that time. She stated that after the only other student had left the bus, the appellant told his son, who was riding with them, "to get off and take a walk."

At that time the bus was "on the dirt road," which she acknowledged, was not the road regularly used when going to or from school, and it was not near where she lived. She stated that she was sitting on the last seat on the bus at the time. When his son left the bus, the appellant told the victim to take her clothes off. She stated that she refused and "he just took them off." She said that he did not take her blouse off but did take her underpants off.

According to the victim, "he (the appellant) put his privates in me . . . the front part." She acknowledged that "in front" meant between her legs. Further, she stated that she "was trying to fight him."

The victim stated that, after the sexual act, the appellant put her clothes back on and asked if she was going to tell her mother. When she responded that she was, "he said I'd better not, better not tell."

At that point, the appellant's son returned to the bus and said "somebody was coming." The appellant then told his son to let the hood of the bus down and drove the bus away.

The victim said that she was taken home and that, when she left the bus, she saw her mother. She stated that she told her mother what had occurred and then showed her mother the location at which the bus had been stopped and the act committed. She also said that her mother took her to a doctor.

Mrs. Richardson was recalled and presented, over defense objections, certain official school records alleging that psychological tests had been given to the victim. Portions of these documents, indicating that the victim had an I.Q. of 32 or below, were admitted into evidence over defense objections. Moreover, the trial court took judicial notice of the fact that most lay persons are familiar with the term I.Q.

Julia Battle stated that, on the day in question, she recalled seeing a bus from the Macon County Rehabilitation Center on the road near her house, and that the bus did not usually travel that particular road.

At the completion of this witness' testimony, the State rested its case and the defense made a motion to exclude the State's evidence. The motion was denied and the State reopened its case and recalled Mrs. Richardson. She testified, over defense objections, that the victim was not able to consent to sexual intercourse or to appreciate the consequences of such an act. During cross-examination she admitted that the school taught sex education as a regular part of its curriculum.

At the end of Mrs. Richardson's testimony, the State rested and defense called the appellant, Reuben Long. He testified that he was employed by the Macon County Retardation Center as a bus driver and that the victim was one of nineteen students in his care. Further, he stated that she was the last passenger to be transported that day. The appellant testified that, on the day in question, he delivered the victim to her home at the regular time and did not at any time rape her or attempt to have sexual intercourse with her.

At the end of the appellant's testimony, the defense rested and the case was submitted to the jury.

I

The appellant contends that the State failed to establish a prima facie case of rape. He argues that there was no evidence of force, coercion or actual penetration.

Rape has been defined as the unlawful carnal knowledge of a female by a male, forcibly and against her will. Thomas v. State, 53 Ala.App. 232, 298 So.2d 652. The degree of force necessary for a conviction need not be such as to place the victim under such reasonable apprehension of death or bodily harm as to overpower her will. It is sufficient that the female was under such duress that the act was accomplished against her consent. Brummitt v. State, Ala.Cr.App., 344 So.2d 1261. According to all authorities, actual penetration of the female's sex organs is necessary to constitute carnal knowledge, which is synonymous with sexual intercourse. Harris v. State, Ala.Cr.App., 333 So.2d 871. Penetration to a particular extent is not required but "some degree of entrance of the male organ within the labia pudendum is essential." Harris v. State, supra; 75 C.J.S. Rape § 10b. Whether such penetration is accomplished is a question of fact for the jury. Hacker v. State, 31 Ala.App. 249, 15 So.2d 336.

The testimony recited above shows that there was penetration and that it was without the victim's consent.

From the record, the following questions were asked of the victim:

"Q. All right, where, what part of you did he put his thing we call penis in?

"A. Front.

"Q. Is that down between your legs?

"A. Yes.

"Q. Is that where you wee-wee?

"A. Yeah.

"Q. After he got through doing what he was doing to you, what did you do and what did he do?

"A. I was trying to fight him."

In view of the foregoing, we believe there was sufficient evidence from which a jury could determine whether there was penetration and whether it was accomplished against the victim's will. Hacker v. State, supra; Brummitt v. State, supra.

In our judgment, the facts were sufficient to prove the elements of the offense and would support the jury's finding of appellant's guilt. Therefore, it is our judgment that the denial of the appellant's motion to exclude was proper.

II

The appellant maintains that testimony by a lay witness as to the victim's mental capacity is not admissible without a "proper predicate" being laid. He further claims that the State failed to prove that the victim was "mentally incompetent to give consent to intercourse, if indeed intercourse occurred."

Appellant argues that the State endeavored to prove, through testimony of the director of the Macon County Retardation Rehabilitation Center concerning documents purported to be official records of the school, that the victim was incompetent to give her consent. He insists that the court was in error in allowing State's Exhibit A, a statement indicating the victim's intelligence quotient, to be entered into evidence.

We have searched the transcript of evidence and have found that the appellant emphatically denied having intercourse with the prosecutrix.

From the record, the following...