Powe v. State

CourtSupreme Court of Alabama
Citation597 So.2d 721
PartiesEx parte State of Alabama. (Re Willie James POWE v. STATE). 1901568.
Decision Date13 December 1991

James H. Evans, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for petitioner.

Lawrence B. Sheffield III and John A. Lentine of Sheffield, Sheffield, Sheffield & Lentine, P.C., Birmingham, for respondent.

INGRAM, Justice.

Willie James Powe was charged, in a two-count indictment, with first degree rape, in violation of § 13A-6-61, Ala.Code 1975, and second degree rape, in violation of § 13A-6-62. The charges stemmed from allegations by Powe's minor daughter, N.S., that Powe sexually assaulted her. Powe was convicted, after a jury trial, of rape in the first degree and was sentenced to a term of 12 years in the state penitentiary. However, the Court of Criminal Appeals reversed Powe's conviction and rendered a judgment for the defendant, 597 So.2d 720, finding insufficient evidence to prove the element of forcible compulsion under § 13A-6-61(a)(1). This Court granted the State's petition for the writ of certiorari.

The State raises one issue for our review: Whether the Court of Criminal Appeals erred in reversing and rendering a judgment in the instant case based upon a finding of insufficiency of the evidence to prove the element of forcible compulsion. Specifically, the State argues that the Court of Criminal Appeals' decision conflicts with that court's decisions in Pittman v. State, 460 So.2d 232 (Ala.Crim.App.1984), writ quashed, 466 So.2d 951 (Ala.1985), and Parrish v. State, 494 So.2d 705 (Ala.Crim.App.1985).

The record in this case reveals the following pertinent facts: The alleged victim, N.S., testified that Willie Powe is her natural father and that sometime during the month of May 1988, he sexually assaulted her. N.S. was 11 years old at the time of the alleged incident.

N.S. stated that the incident took place in her parents' bedroom when no one, other than N.S. and her father, was at home. N.S. testified that she and her father had been arm wrestling while she was on the floor and her father was on the bed. She testified that at some point her father told her that it was time to take a nap and that he told her to lie on her mother's side of the bed. N.S. said she did as her father told her, while her father lay on the other side of the bed. Thereafter, N.S. said, Powe told her that he was cold, and she said he told her to get on top of him. Again, N.S. said, she obeyed her father. N.S. further testified that her father physically lifted her up on top of him. She stated that at this point she was lying lengthwise on top of her father.

N.S. testified that next her father unbuttoned and unzipped her pants, put his hand inside her panties, and touched her pubic hair. N.S. testified, on direct examination, that after her father touched her pubic hair, he then pulled down the hospital-type scrub pants that he was wearing and put his penis inside her vagina. Although this testimony conflicted somewhat with her response to certain questions on cross-examination, N.S. was recalled to the witness stand by the prosecution later in the trial and once again testified that her father did put his penis inside her vagina.

N.S. testified that after her father had put his penis inside her vagina, he then told her to get up and go and lock the door in the living room, which N.S. did. N.S. stated that she then went back to the bedroom, but that she did not get back on the bed with her father. Rather, N.S. stated, she combed her hair and got ready to go over to her best friend's house. N.S. testified that before she left her house, her father called her back into her mother's bedroom and told her that she was "acting like a baby."

N.S. testified that she had lain on top of her father for about two minutes and that it was about four or five minutes between the time that she got off her father and the time that she left the house. Although N.S. stated that her father did not expressly threaten her before or during the incident, she did testify that she was afraid of her father.

N.S. testified that she did not tell her best friend what had taken place because she did not think that her friend should know. However, some time after the incident occurred, N.S., while at school, wrote a note to a classmate telling her about the incident. The note was intercepted by two other classmates of N.S., who took the note to the school counselor. The counselor testified that after receiving the note she talked with N.S. about what she said her father had done to her. N.S. told the counselor that she had not told her mother about the incident because she was afraid it would cause her mother to hate her.

After talking with the school counselor about the incident, school officials reported the incident to the Birmingham Police Department. Thereafter, N.S. was interviewed by Sergeant Sue Boggan. Sergeant Boggan testified that when she talked with N.S., N.S. appeared very withdrawn and very fearful. She further stated that N.S. was extremely afraid of talking about what had happened and also about telling her mother about the incident. Sergeant Boggan stated that, based on her training and experience in dealing with abused children, she perceived N.S. as exhibiting characteristics consistent with those exhibited by other children that she had observed who were victims of sexual abuse.

After her interview with Sergeant Boggan, N.S. was taken by her mother to the Children's Hospital of Alabama, where she was examined by Dr. Christy Mulcahey. Dr. Mulcahey testified that she was a specialist in the area of obstetrics and gynecology. Dr. Mulcahey indicated that she was particularly interested in gynecologic problems in children and in teenagers and that as part of her training she had worked in a child abuse program in San Francisco, California.

Dr. Mulcahey stated that during her examination of N.S. in December 1988, N.S. told her that her father had "touched her all over" and had "put his penis in her vagina." Dr. Mulcahey testified that at the time of the examination, she wrote in her assessment of N.S. that N.S. gave a very clear, fairly straight-forward history of abuse.

Dr. Mulcahey further testified that her physical examination of N.S. revealed nothing exceptional for "an 11- almost 12-year old who had already started her period." Dr. Mulcahey indicated that her examination revealed that N.S.'s hymenal tissue was still intact. However, Dr. Mulcahey cautioned that approximately three-fourths of children who have been sexually abused have normal physical examinations. She noted that the statistic is particularly true for children in N.S.'s age group because they are of an age where the hymenal tissue at the opening of the vagina "is more elastic and stretchy" than it would be at age four or five. Dr. Mulcahey further indicated that the increased elasticity of the vaginal tissue is the result of the female body's production of estrogen, which coincides with the onset of menstruation.

Audie Powe, N.S.'s mother, also gave testimony at the trial. She testified that she was Powe's wife and N.S.'s mother and that Powe was N.S.'s natural father. She further testified that she had initiated divorce proceedings against Powe, but that the divorce was not final at the time of trial.

Mrs. Powe testified that prior to the alleged incident between her daughter and her husband, her daughter had been a good student and had been active and well adjusted. Mrs. Powe further stated, however, that in the spring of 1988, her daughter's grades dropped and she began to get "rejectful in a lot of things." Mrs. Powe also testified that her daughter had been hospitalized on one occasion since the incident because she had become suicidal. Mrs. Powe testified that when she and her husband would "go to arguing, fussing ... and fighting," it made N.S. "real nervous and upset."

After the State rested its case, Powe testified in his own defense. Powe testified that he did not sexually assault his daughter and that the incident to which she testified never occurred. He further stated that his daughter had lied about the incident and had stuck to the lie after she was caught. He also testified that although he and his wife had argued in N.S.'s presence, he had never struck his wife or N.S. Powe denied ever threatening his wife or his daughter in any way.

The sole issue in this case is whether the evidence, as summarized above, is sufficient to support a conviction of first degree rape. In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). Furthermore, a judgment of conviction will not be set aside on the ground of insufficiency of the evidence unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the judgment is so decided as to clearly convince the reviewing court that it was wrong and unjust. Jackson v. State, 516 So.2d 726 (Ala.Crim.App.1985).

Section 13A-6-61(a)(1), Ala.Code 1975, the provision under which Powe was convicted, provides that "[a] male commits the crime of rape in the first degree if ... [h]e engages in sexual intercourse with a female by forcible compulsion." "Sexual intercourse" is defined in § 13A-6-60(1) as occurring "upon any penetration, however slight." Furthermore, § 13A-6-60(8) defines "forcible compulsion" as "[p]hysical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person."

In the present case, there is no evidence that N.S. was overcome by her father's physical force....

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