Pettibone v. State

• Decision Date: 26 August 2011
• Docket Number: CR–09–1530.
• Citation: 91 So.3d 94
• Parties: Bryan PETTIBONE v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

91 So.3d 94

Bryan PETTIBONE

v.STATE of Alabama.

CR–09–1530.

Court of Criminal Appeals of Alabama.

Aug. 26, 2011.

W. Donald Bolton, Jr., and Katherine Bolton Bonnici, Foley, for appellant.

Troy King and Luther Strange, attys. gen., and Michael G. Dean, asst. atty. gen., for appellee.

WELCH, Presiding Judge.

Bryan Pettibone was convicted of four counts of enticing a child for immoral purposes,violations of § 13A–6–69, Ala.Code 1975; three counts of second-degree sexual abuse, violations of § 13A–6–67, Ala.Code 1975; and one count of attempted second-degree sexual abuse, a violation of §§ 13A–6–67 and 13A–4–2, Ala.Code 1975. For each of the four enticement convictions, the trial court sentenced Pettibone to serve five years' imprisonment. For each of the three second-degree-sexual-abuse convictions, the trial court sentenced Pettibone to one year in prison. For the attempted second-degree-sexual-abuse conviction, the trial court sentenced Pettibone to six months' imprisonment. No posttrial motions were filed. This appeal followed.

Initially we note that Pettibone's first trial resulted in a mistrial on March 3, 2010. Pettibone's second trial commenced on May 3, 2010, and the following evidence was presented at the second trial. The State presented evidence that during the 2008–2009 school year at Central Baldwin Middle School, Pettibone, who was a teacher and basketball coach, had inappropriate physical relations and communications with four female students: B.B., M.D., D.S., and K.B.

B.B. testified to the following. During the seventh and eighth grade, B.B. attended Central Baldwin Middle School, and during her eighth-grade year she was a cheerleader for the basketball and football teams. On a Friday, the date of which was unspecified at trial, in B.B.'s eighth-grade year, she was standing at her locker when Pettibone approached her and asked, “When are you going to call me?” (R. 279.) B.B. said, “Never.” (R. 279.) B.B. said that they were joking around, and Pettibone gave her his number. When B.B. did not telephone Pettibone over the weekend, Pettibone approached her at school on Monday and asked why B.B. had not called him. B.B. gave Pettibone her number, and they began text messaging one another.

At a certain point, Pettibone began texting B.B., “1–2–3,” which meant “I love you.” (R. 281.) B.B. testified:

“We were on the way to a basketball game one day and we were texting and he told me to look at him and lick my lips sexy-like and look at his arms, how big they were and stuff like that. And then one time, on the way, he told me that he was horny and to come fix it.”

(R. 282.)

B.B. testified that Pettibone licked his lips at her while she was sitting on the seat of the bus, and Pettibone stood in the aisle flexing his muscles at her. B.B. stated that Pettibone told her on the phone that he had heard that B.B. had been “fingered” by one of her previous boyfriends and asked if he could also do the same. (R. 283.) B.B. told Pettibone that he could not. B.B. testified that she and Pettibone also began hugging side-to-side but testified that one day Pettibone sent her a text message and stated that “he didn't want no more of that side crap, he wanted a real hug, like face-to-face.” (R. 284.) B.B. further testified,

“He asked me if he could kiss me and I was, like, I don't know. He asked me, like of a certain number from, like, one to ten. I give him a number. I can't remember what it was. He asked if there was any chance of a tongue kissing and I responded I don't know still.”

(R. 285.)

B.B. also stated that, in one instance, she was alone with Pettibone in his classroom, and Pettibone locked the door to the room, began telling her how much he cared for her, and kissed her on the cheek. Pettibone and B.B. were already done talking when the custodian unlocked the door and came in the classroom. Pettibonealso began putting “1–2–3” messages in B.B.'s locker. B.B. stated that she and Pettibone began talking on the phone or text messaging one another all day long and also talked from approximately 9:00 p.m. to 1:00 a.m. B.B. stated that her mother, D.B., confronted her about talking to a person at a certain telephone number too often and for too long. When D.B. asked whose phone number it was, B.B. told her that it belonged to someone other than Pettibone.

At that point, B.B. told Pettibone that her mother was getting suspicious, and Pettibone purchased a cell phone for B.B. Pettibone also sent B.B. a text message and asked her to meet him somewhere during a basketball game, but B.B. did not meet with him.

D.B. testified to the following. D.B. testified that B.B. had her own cell phone and that she noticed that B.B. began talking on the phone later at night until approximately 12:00 or 1:00 a.m. D.B. testified that B.B. began talking in her bedroom with the door locked when B.B. had not done so previously.

Peggy Johnson, the custodian at Central Baldwin Middle School, testified to the following:

“One day I had gone to clean [Pettibone's] room and the door was locked and normally his door was not locked. And I used my key and I got in. And I flipped the light on and I really didn't pay any attention and I got busy. And out of the right—my eyesight on the right, I saw movement, and as I looked, Mr. Pettibone and a white student were coming from the right corner of the room headed up front.”

(R. 446.)

Johnson stated that she later determined that the student was B.B.

The State presented evidence indicating that in December, the principal, Mike Vivar, D.B., and B.B. met in Vivar's office. B.B. showed D.B. and Vivar the cell phone Pettibone had purchased for her as well as notes Pettibone had written her. Cell-phone records were admitted into evidence, and the records reflected that B.B. and Pettibone had been talking on the phone late at night in December 2008. The State also presented evidence indicating that B.B.'s cell phone contained a text message conversation between Pettibone and B.B. wherein they discussed hugging and kissing each other.

Shayla Hollowell, a teacher and the cheerleading coach at Central Baldwin Middle School, testified to the following. Hollowell testified that Pettibone would wait for B.B. to come out of Hollowell's classroom three or four times a week and that Pettibone and B.B. would talk to one another in close proximity. Because Hollowell had “personal suspicions” about the situation toward the end of B.B.'s seventh-grade year, she asked the assistant principal that B.B. not be placed in Pettibone's science class for her eighth-grade year. (R. 405.)

Hollowell testified that D.S. videotaped school athletic events for Pettibone and that she saw D.S. and Pettibone walking toward Pettibone's classroom several times after home and away games between 8:00 and 9:30 p.m., depending on when the games were over.

D.S. testified to the following. D.S. testified that she attended Central Baldwin Middle School and that she was the scorekeeper for Pettibone during basketball season. D.S. was also in Pettibone's science class in the eighth grade. D.S. testified that she and Pettibone would meet before or after basketball games either in Pettibone's classroom, in a closet in his classroom, or in the locker room. D.S. also testified that she and Pettibone would meet in the coach's office during basketball games. D.S. testified that she and Pettibone kissed one another on multiple occasions and that Pettibone touched her back, buttocks, and stomach over her clothes. In one incident, Pettibone placed D.S.'s hand on his genitals over his clothes. Pettibone and D.S. would talk on the phone, text one another, and Pettibone told D.S. that he loved her, using the number “1–2–3.” (R. 565.)

Leigh Rogers, a teacher at Central Baldwin Middle School, testified to the following. Rogers testified that she was the eighth-grade girls basketball coach and seventh-grade girls volleyball coach. Rogers testified that after the teams returned from basketball trips, she would stay outside to ensure that all the girls were picked up by their parents, and Coach Theresa Schreck would ensure that all the girls were out of the locker room. On one particular night during the 2007–2008 school year, Rogers was under the impression that all the girls had already gone home, and Schreck and Rogers were outside talking when they saw D.S.'s mother arrive. D.S. then emerged from the building and told Schreck and Rogers that she had been in “Pettibone's room” watching the game film. (R. 427.)

Theresa Schreck, a teacher and girls basketball and volleyball coach at Central Baldwin Middle School, testified to the following. Schreck testified that she had seen D.S. go to Pettibone's classroom on numerous occasions and that D.S., who was in Schreck's physical-education class, would bring Schreck notes indicating that she was going to Pettibone's classroom to grade papers. Schreck testified, “The notes started becoming, you know, habitual and so I told her she could no longer go up there because I didn't feel that there were that many papers to be graded for it to be an everyday occurrence.” (R. 438.)

M.D. testified to the following. M.D. testified that she attended Central Baldwin Middle School and that she and Pettibone began text messaging one another when she was in the eighth grade. M.D. stated that they discussed kissing and that Pettibone would invite her to his classroom to grade papers for him. In one instance, when M.D. entered the classroom, Pettibone pointed to a table in the corner and told M.D. to go sit at the table. The door to the classroom was locked, and Pettibone began kissing M.D. Pettibone kissed M.D. with an open mouth, put his hands under her shirt but not under her bra, and put his hands between M.D.'s thighs. M.D. testified that Pettibone touched her private area over her clothes. M.D. testified that she could see that Pettibone had an erection.

K.B. testified to the following. K.B. attended Central Baldwin...