M.L.H. v. State

• Decision Date: 12 August 2011
• Docket Number: CR–09–0649.
• Parties: M.L.H. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

99 So.3d 894

M.L.H.

v.STATE of Alabama.

CR–09–0649.

Court of Criminal Appeals of Alabama.

July 8, 2011.

Rehearing Denied Aug. 12, 2011.

Thomas Louis Owens III, Cordova; and Ritchie Lee Tipton, Tuscaloosa, for appellant.

Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.

KELLUM, Judge.

The appellant, M.L.H.,¹ was adjudicated a youthful offender based on the circuit court's finding that he was guilty of first-degree sodomy, a violation of § 13A–6–63, Ala.Code 1975.² The circuit court sentenced M.L.H. to a term of 3 years' imprisonment; however, the court split the sentence and ordered M.L.H. to serve 9 months' imprisonment followed by 27 months' supervised probation. The circuit court also ordered M.L.H. to submit a DNA sample, to undergo sex-offender treatment, and to pay $50 to the Crime Victims Compensation Fund and court costs.

The evidence presented at trial established the following pertinent facts. M.L.H. is the biological son of C.M. D.H. and C.M. began dating when M.L.H. was a few months old; they married when M.L.H. was approximately three years old. D.H. and C.M. had three children together: twin daughters—both of whom have the initials B.H.—and another son, J.D.H. D.H. and C.M. divorced, and D.H. married F.H. in 2002. D.H. and F.H. had two children together: L.H. and E.H. D.H. and F.H. shared custody with C.M. of M.L.H., the twin sisters, and J.D.H.; however, at the time of the incidents underlying this prosecution, M.L.H. was living with D.H. and F.H. so that he could attend Tuscaloosa County High School.

On September 22, 2007, D.H., L.H., and M.L.H. traveled to a hunting camp owned by D.H. in Marengo County, near Jefferson. At one point, F.H. telephoned D.H. to ask about the boys, and D.H. told her that M.L.H. and L.H. were riding a four-wheel all-terrain vehicle by themselves. This upset and worried F.H. because she did not want M.L.H. to be alone with L.H., who was then four years old, given her suspicion that M.L.H. had sexually molested his biological brother and sisters.

Later that evening, D.H., M.L.H., M.L.H.'s girlfriend, and another friend of M.L.H.'s were watching a football game in the living room of D.H. and F.H.'s house while F.H. and L.H. were watching television in the basement. While downstairs F.H. decided she needed to talk to L.H. about inappropriate touching. She asked L.H. if anyone had ever touched his “butt” or “tee-tee.” (R. 165.) L.H. indicated that he, F.H., “his little girl friend at preschool,” and M.L.H. had touched him in those places. (R. 165.) L.H. said that M.L.H. had touched his penis while the two were in L.H.'s room. A few moments later L.H. told F.H. that M.L.H. had touched his buttocks and “[M.L.H.] stick [his] fingers up [L.H.'s] butt.” (R. 165.) F.H. took L.H. upstairs, pulled D.H. aside and told him what L.H. had just told her. During this discussion, L.H. told D.H. and F.H., “I keeped [sic] [M.L.H.'s] secret lots of times.” (R. 166.) Both F.H. and D.H. testified at trial to L.H.'s saying that he had kept M.L.H.'s secret “lots of times.” All three went back inside the house to continue watching the football game.

F.H. took L.H. to his room to read him a book and put him to bed. L.H. picked up a book, “Pooh's Sunny Day Songs,” which had a little toy microphone on the front cover. L.H. told F.H., “[M.L.H.] do this,” and proceeded to put his mouth on the toy microphone. F.H. confirmed that L.H. was saying that M.L.H. had put his mouth on L.H.'s penis. The following Monday morning, F.H. took L.H. and E.H. to be examined by Dr. Allison Cunningham, her children's pediatrician. That same day, D.H. and F.H. filed a police report with the Northport Police Department. F.H. testified that she never again discussed with L.H. the statements he made to her about M.L.H. molesting him.

At trial, L.H. testified that M.L.H. had touched L.H.'s “weiner” while the two were in the bathroom on the main floor, both with his hand and with a stick L.H. had found outside. L.H. said this happened only one time. Contrary to what L.H. had previously told F.H., L.H. denied that M.L.H. had touched his buttocks, stuck his fingers into L.H.'s anus, kissed L.H., or put his mouth on L.H.'s penis.

F.H. testified that L.H.'s behavior changed between May 2006 and September 2007. During this period, L.H. began sleeping with his lights on, wetting his bed, and crying out to F.H. during the night; all these occurrences were unusual for L.H. F.H. testified that L.H. was also kissing people on the mouth during this time and she repeatedly told him not to kiss people in that manner. L.H. had been moved from a room adjacent to F.H.'s room on the upstairs floor of the house to a room on the main floor after the birth of his sister, E.H. F.H. testified that L.H. was four years old in September 2007.

Dr. Cunningham testified that she examined L.H. on September 24, 2007. She looked at L.H.'s anus as part of her examination and observed irritation in the area. While she was examining his anus, L.H. asked Dr. Cunningham not to stick her fingers in his anus. Dr. Cunningham found this spontaneous request to be odd for a child of L.H.'s age. Based on the nature of the visit and the information given to her by F.H., Dr. Cunningham reported L.H.'s case to the Alabama Department of Human Resources (“DHR”) and referred L.H. to Dr. Michael Taylor for an examination. On cross-examination, Dr. Cunningham testified that F.H. had indicated to her that she suspected, but could not prove, that M.L.H. had been sexually abused as a child. On re-direct examination, Dr. Cunningham testified that F.H. had indicated to her that M.L.H. had a history of sexually abusing his sisters.

Sharon Whitfield, a forensic interviewer with the Tuscaloosa Children's Center, interviewedL.H. on September 25, 2007, and recorded the interview with a video camera. The videotaped interview was played at trial. Whitfield testified that initially L.H. indicated that a friend at school with the same first name as M.L.H., had touched his penis. Later, L.H. stated that it was his brother, M.L.H., who touched his penis. L.H. indicated to Whitfield that M.L.H. had touched his penis and his rear end on a touch survey—an anatomical drawing used to identify where a victim was touched by an abuser. After conducting her interview with L.H., Whitfield referred L.H. to Terry Osberry, a professional counselor, for an extended forensic examination.

After cross-examining Whitfield, counsel for M.L.H. made an oral motion to strike that video evidence from the record. Counsel argued that the hearsay testimony contained in the video recording played at trial had not been shown to possess particularized guaranties of trustworthiness as required by § 15–25–37, Ala.Code. 1975. The circuit court denied this motion on the ground that, in its opinion, § 15–25–37 did not apply to out-of-court statements admitted at trial pursuant to § 15–25–32(1), Ala.Code 1975, under L.J.K. v. State, 942 So.2d 854 (Ala.Crim.App.2006).

Dr. Michael Taylor, a pediatrician with the Tuscaloosa branch of the University of Alabama School of Medicine, examined L.H. on November 7, 2007. L.H. indicated to Dr. Taylor that M.L.H. had touched L.H.'s penis and buttocks with his hands and that M.L.H. had put his mouth on L.H.'s penis. Dr. Taylor conducted a physical examination but found no abnormalities. L.H. became very uncomfortable when Dr. Taylor wanted to conduct an anal swab to test for venereal diseases and indicated to Dr. Taylor that “[L.H.] didn't want [the cotton swab] near his anus.” (R. 306.) At the conclusion of his exam, Dr. Taylor recommended that L.H. undergo counseling.

Terry Osberry, a licensed professional counselor, interviewed L.H. on October 31, 2007, and again on November 14 and 26, 2007, as a part of an extended forensic examination. During the first session, L.H. told Osberry that M.L.H. had put his fingers in L.H.'s anus. L.H. also indicated that M.L.H. had touched his penis, put his tongue in L.H.'s mouth, and bit L.H.'s tongue. L.H. said this happened multiple times. During the November 14 session, Osberry presented L.H. with anatomical diagrams—Osberry referred to these as “gingerbread drawings”—so that L.H. might better describe what had happened. Using one diagram to represent M.L.H. and another to represent L.H., Osberry asked L.H. to draw lines from the part of the body M.L.H. used to touch L.H. to the part of L.H.'s body M.L.H. actually touched. L.H. drew lines from M.L.H.'s hand to L.H.'s penis, M.L.H.'s hand to L.H.'s hand, M.L.H.'s hand to L.H.'s buttocks, and M.L.H.'s mouth to L.H.'s mouth. L.H. indicated that these acts of molestation happened in his room on the main floor of the house and in the bathroom on the same floor. During the final session on November 26, L.H. told Osberry that M.L.H. had stuck his fingers in L.H.'s anus.

During the trial, considerable discussion took place between the State, defense counsel for M.L.H., and the court regarding the admissibility of evidence indicating that M.L.H. had touched his other brothers and sisters in an inappropriate manner. Over M.L.H.'s objection, the court allowed the State to question various witnesses about allegations that M.L.H. had molested both of the twin sisters and J.D.H. The court noted that it would consider the evidence not for the truth of the matter asserted, but rather to rebut M.L.H.'s theory of defense that F.H. or D.H. had fabricated these allegations against him.

The State called both of the twin sisters and J.D.H. to testify at trial. All three testified that M.L.H. never touched them in an inappropriate manner or that they did not remember incidents in which M.L.H. touched them inappropriately. Randy Shelton, a social worker formerly with the Pickens County DHR, testified that in 2003, he investigated allegations that M.L.H. had molested his siblings. According to Shelton, M.L.H. admitted to touching one sister on the buttocks, but denied...