R.L.G., Jr. v. State, CR-95-0926

CourtAlabama Court of Criminal Appeals
Citation712 So.2d 348
Docket NumberCR-95-0926
PartiesR.L.G., JR. v. STATE.
Decision Date03 July 1997

Page 348

712 So.2d 348
R.L.G., JR.
Court of Criminal Appeals of Alabama.
July 3, 1997.
Rehearing Denied Aug. 22, 1997.

Page 349

Clyde Baker, Guntersville, for appellant.

Bill Pryor, atty. gen., and Thomas F. Parker IV, deputy atty. gen., for appellee.

PATTERSON, Retired Appellate Judge.

The appellant, R.L.G., Jr., appeals from his convictions for sexual abuse in the first degree of his sister C.G.; sodomy in the first degree of his daughter A.G.; and sexual abuse in the first degree of A.G. For the sexual abuse convictions, the appellant was sentenced to two three-year sentences, which were split and he was ordered to serve one year on each sentence, consecutively. For the sodomy conviction, he was sentenced to 15 years, and was ordered to serve 3 years, which were to be served consecutively to the 1-year incarceration portions of the sentences for sexual abuse. The balances of the three sentences were suspended, and the appellant is to be placed on five years' probation after serving the incarceration portions of the three sentences.

The sole issue presented on appeal is whether the trial court erred in failing to require the prosecution to elect what incidents it was relying on to prove the crimes charged and in failing to give the jury guidance as to which incidents were the subject of the indictments. An understanding of the nature of the evidence presented to the jury is necessary to decide this issue. The testimony

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and evidence elicited at trial is as follows:

C.G., who was 17 years old and a high school senior at the time of trial, testified to the following: She is the appellant's sister, and he is 20 years her senior. When she was six or seven years old, the appellant, who at that time was in his 20s, took her in her bedroom purportedly to tell her about a movie, either Godzilla or King Kong. However, the appellant locked the bedroom door, set her on her television cabinet, and started "feeling" between her legs over her clothes. Other children, including S.S., her niece and friend, were in the house at this time. S.S. testified that C.G. and the appellant were alone in C.G.'s bedroom with the door locked for about 30 minutes and that she knocked on the door and told them to come out, but no one responded. C.G. also remembers a time when the appellant was on top of her while she was lying on her bed on her stomach. Neither she nor the appellant was clothed below the waist. The appellant attempted to put his penis into her private parts, urging her, "Let's try one more time." She could not recall if this act was on the same occasion that she and of the appellant were locked in her room, but she testified that it was close in time to that incident--when she was six or seven years old. On another occasion, while she and the appellant were playing hide-and-go-seek with other children, the appellant asked her to hide with him. While they were hidden in their father's green Ford truck, the appellant asked her to put her mouth on his penis and offered her a dollar if she would do it. On a later occasion, while the appellant was home visiting from Georgia, where he was living at the time, he accosted C.G. during the middle of the night, while she was on the living room sofa, and put his hands in her panties. She pretended to be asleep. When she was approximately 11 years old, she rode to the store with the appellant and his 3-year-old son. On a dirt road less than one-half mile from their home, the appellant stopped the car, put her on his lap, and felt her private parts under her panties while asking her if anyone else had "done this before besides him." During this act, the appellant's three-year-old son was in his car seat. When C.G. was about 13 years old, before their grandmother died during "the snow in '93 or '94," C.G. was lying on the sofa at her grandmother's house, where she was to sleep that night, when the appellant returned to the room after everyone had gone to bed, and touched her arm. She pushed him away, and he asked if he "could do the same thing to [her] that he used to do." She refused, telling him that she was "taking a stand," that he was "sick in the head," and that if he wanted "it," to get "it" from his wife who was asleep in a bedroom. He responded that he knew that he needed help. He did not abuse her any more.

On the last day of school in May 1994, C.G. went to her school counselor and discussed a personal problem with her. According to the counselor, C.G. was crying and very upset. During the summer after this conversation with her school counselor, C.G. spoke with A.G. twice because she "didn't want the same thing to happen to [A.G.]." Her concern for A.G. was caused by her observations of "the way [A.G.] acted around" the appellant. During these two conversations, A.G. talked about what the appellant had done to her. S.S. was present during the second conversation. (S.S. testified that, in this conversation, A.G. made a detailed complaint regarding the appellant.) After these two conversations and, in August 1994, when C.G. returned to school from summer vacation in August 1994, she went back to her counselor and told her, in discussing the same subject discussed in their May conversation, what A.G. had told her. She told the counselor that she was determined to "do something about it," so the counselor notified a counselor at Asbury School, the school A.G. attended. (At trial, the counselor testified that C.G. was a very good student and had a very good reputation at school.)

As a result of C.G.'s discussion with her counselor, Diane DuBoise, a child protective service investigator for the Department of Human Resources, interviewed A.G., who at that time was five years old and in kindergarten. Ms. DuBoise's interview was structured so that she could elicit spontaneous answers, untainted by leading questions. At the beginning of this interview, A.G. stated

Page 351

that her father had hurt her. When she was asked how he had hurt her, she put her hand between her legs. She also stated that this occurred when her mother was at work and her brothers were not home, that it happened on the bed in her room, that he would put his hand in her panties, and that no one other than her father had done this to her. When asked to indicate what he did, she made gestures of a type not reflected on the record, except her first indicating one finger. 1 When asked how she felt about her father's actions, she replied, "It hurts and I want it to stop."

Approximately four days after this interview, Ms. DuBoise interviewed A.G. again, at A.G.'s mother's request. After A.G. indicated that she did not want to talk about the subject of their prior conversation, Ms. DuBoise asked A.G. if she would be more comfortable drawing about what they had previously discussed. A.G. said that she would, and she picked from anatomically correct drawings (four of the female body and four of the male body in various stages of physical development: preschool, grammar, teen, and adult) front and back drawings of a grammar school-age female as the one resembling her and front and back drawings of an adult male as the one resembling the person who she said had hurt her. On the female drawings, she marked an "X" on the chest, explaining that "daddy touched me there"; an "X" on the vagina, explaining that "daddy rubs me there"; and an "X" on the back, explaining that "daddy kissed me here." She put, on the male drawing, "X" 's on the chest, on a hand, on the knees, and on the penis, explaining, "This is where daddy made me touch him." To the question whether her father kissed her anywhere other than her back, A.G. pointed to the belly button on the female drawing, to the vagina and to the hands, explaining in regard to her hands, "He sucks my hands." She also stated, "He sucked on my ear and put his tongue in my ear." At this point, A.G. was asked when and how did her father do these things. She answered that she would usually be in her bed; that her mother would be at work and her brothers outside; and that he would take off her shirt and panties while he was rubbing her. When the investigator tried to "determine time," A.G.'s answer as relayed by Ms. DuBoise was: "[I]t usually happened in the afternoon while ... her brothers were outside riding the bikes. And sometimes it would happen at night and sometimes in the morning, but usually it was just in the afternoon." A.G. further stated that "it" would sometimes happen while her father was bathing her: he would wash her with his hand and "put his finger in" her. She also stated that "daddy tries to get me to touch him." She gave the following explanation, as related in Ms. DuBoise's testimony, when asked what she meant:

"She says, 'He tries to put'--and then she got real quiet. And I'd asked her, I said, 'He tries to put what?' And she said--she pointed--at that point she was real quiet, and she pointed to the penis on the drawing. And I said, 'He tried to put what?' She said he tried--she would 'He tries to put'--and she pointed to the penis and then she pointed to her mouth. And I said, 'What does he do when he does that?' And she said, 'He moves.' ... And I said, 'Well, how does he move?' And she--she showed me by moving her hips and said, 'This is what daddy does.' I asked her how it felt and she said, 'It hurt.' I said, 'Where did it hurt?' ... [S]he went 'Here.' She pointed to her throat.''

After A.G. answered "no" to whether she had ever noticed anything come out of the penis, the investigator concluded the interview because A.G. was "kind of getting upset." The following testimony of Ms. DuBoise reflects what next happened, as the investigator was getting ready to leave:

"A. .... I was closing up my notebook and I was getting ready to leave and [A.G.] laid down on the floor. And I said, 'What are you doing?' She said, 'This is daddy.' She was lying on her back.

Page 352

"Q. She didn't do that in response to...

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