R.A.S. v. State

• Decision Date: 29 May 1998
• Parties: Ex parte State of Alabama. (Re R.A.S. v. State). 1961990.
• Court: Alabama Supreme Court

Page 117

718 So.2d 117

Ex parte State of Alabama.

(Re R.A.S. v. State).

1961990.

Supreme Court of Alabama.

May 29, 1998.

Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for petitioner.

Michael A. Dasinger III of Hoiles & Dasinger, P.C., Robertsdale, for respondent.

MADDOX, Justice.

This case involves a prosecution of an alleged resident child molester in which there was evidence of multiple acts of alleged molestation that had occurred over an extended period of time, and it involves legal questions similar to those presented in R.L.G., Jr. v. State, 712 So.2d 348 (Ala.Cr.App.1997), affirmed, Ex parte R.L.G., Jr., 712 So.2d 372 (Ala.1998).

Traditionally, Alabama follows a strict election rule, by which the State must elect the offense on which it will proceed when the evidence discloses two or more offenses growing out of distinct and separate transactions. In R.L.G. v. State, the Court of Criminal Appeals expanded the strict election rule in sexual abuse cases involving a resident abuser of small children where only generic evidence was presented, stating:

"[W]e adopt, for purposes of this case, the 'either/or' rule, but only as that rule is modified for generic evidence: where the evidence of more than one incident of sexual molestation to a child victim by a resident child molester is purely generic and where 'there is no reasonable likelihood of juror disagreement as to particular acts, and the only question [for the jury] is whether or not the defendant in fact committed all of [the incidents],' the trial court should instruct the jury that it can find the defendant guilty only if it unanimously agrees that he committed all the incidents described by the victim."

712 So.2d at 367 (emphasis omitted). The "either-or" rule provides that the prosecution must elect which single act it is relying for a conviction or else the trial judge must give a specific unanimity instruction.

This Court granted certiorari review in R.L.G. and affirmed the Court of Criminal Appeals' expansion of the strict election rule, stating:

"After carefully examining the opinion of the Court of Criminal Appeals, we conclude that the judgment of that court is due to be affirmed. In cases such as this one, trial and appellate courts are required to resolve the tension between the rights of an alleged victim and the rights of an alleged child molester. Art. I, § 35, of the Constitution of Alabama of 1901, provides: '[T]he sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property....' There can be no doubt, as the Court of Criminal Appeals noted, that the legislative policy of this state is to protect the vulnerable child's right to a life free from sexual exploitation. We agree with the Court of Criminal Appeals that this can be done in cases involving purely generic evidence and that an alleged child molester can be afforded all the process he or she is due, without requiring the election judicially mandated by [Deason v. State, 363 So.2d 1001 (Ala.1978), Ex parte King, 707 So.2d 657 (Ala.1997), and Watkins v. State, 36 Ala.App. 711, 63 So.2d 293 (1953) ]."

Ex parte R.L.G., 712 So.2d at 373.

In this case, the specific question presented is whether, in child molestation cases involving an alleged resident abuser and where there is both generic and specific evidence of sexual abuse, this Court should further modify or expand the exception to Alabama's long-standing rule requiring the State to make an election.

R.A.S. was convicted of first degree sexual abuse of his stepdaughter A.M., § 13A-6-66(a)(3), Ala.Code 1975; first degree sodomy of A.M., § 13A-6-63(a)(3); second degree rape of A.M., § 13A-6-62(a)(1); first degree sexual abuse of his stepdaughter C.M., § 13A-6-66(a)(3); and first degree sodomy of C.M., § 13A-6-63(a)(3).

The Court of Criminal Appeals reversed the defendant's conviction, R.A.S. v. State, 718 So.2d 108 (Ala.Cr.App.1997), basing its reversal on this Court's holding in Ex parte King, 707 So.2d 657 (Ala.1997), in which a majority of this Court declined to overrule or to make an exception to the long-standing doctrine of election as it was enunciated in Deason v. State, 363 So.2d 1001 (Ala.1978), and Watkins v. State, 36 Ala.App. 711, 63 So.2d 293 (1953).

Even though the Court of Criminal Appeals reversed the defendant's conviction, it specifically urged this Court to consider extending the expansion of the strict election rule to apply to cases based upon generic and specific evidence, such as this one. The court wrote:

"In our opinion in R.L.G. v. State, 712 So.2d 348 (Ala.Cr.App.1997), released today, in recognition of the unique problems posed by the prosecution of alleged resident child molesters, we adopted a less strict election rule to be applied to 'generic evidence' cases. This expanded rule cannot be applied here because the prosecution's evidence was not purely generic. However, we do find it appropriate ... to urge the Alabama Supreme Court, as we did in R.L.G., to consider extending our expansion of the strict election rule to apply to cases based upon generic and specific evidence, such as this one. In our opinion, such expansion would achieve a fairer balance of the realities of the nature of the evidence of sex offenses repeatedly committed against the same child by a resident abuser and the rights of the defendant, the nature of which [evidence] is peculiar to the narrow class of sex offenses allegedly committed by a resident molester."

718 So.2d at 116. We granted the State's petition for the writ of certiorari primarily to consider, as requested by the Court of Criminal Appeals, reexamining the holding in Ex parte King and to consider extending the expansion of the strict election rule to apply to cases based upon generic and specific evidence.

After reexamining the holding in Ex parte King and the holding in Ex parte R.L.G., we agree with the State that the strict election rule should be expanded in cases that, like this one, involve a resident child molester and in which there is both generic evidence and specific evidence indicating that multiple acts of molestation have occurred over an extended period.

In R.L.G. v. State, supra, in which the Court of Criminal Appeals adopted an expanded election rule in cases involving only generic evidence, the court discussed many of the same legal issues that are presented in this case, such as (1) a defendant's due process right to fair notice of the charges against him and to a reasonable opportunity to defend against those charges; (2) a defendant's entitlement to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each offense charged; and (3) the right of a defendant to have his or her conviction sustained only if it is supported by substantial evidence. The Court of Criminal Appeals and this Court reviewed each of these issues in the R.L.G. cases, and we have reviewed them again in this case.

In R.L.G. v. State, the Court of Criminal Appeals discussed at length the defendant's right to procedural due process, stating:

"In regard to a defendant's due process rights to fair notice of the charges against him and to a reasonable opportunity to present a defense to those charges, we note that in Alabama, clearly, the defendant has no right to notice of the specific time or place of the alleged offense, so long as it occurred within the applicable limitations period. 'It is not necessary to state the precise time or date at which or on which the offense is alleged to have been committed, or the place where the offense is alleged to have been committed unless the time or place is a material element of the offense.' Rule 13.2(d)[, Ala.R.Crim.P.]. See also [Ala.Code 1975,] §§ 15-8-30 and -31 (making it unnecessary to allege in the indictment the precise time when, and the place where, the offense was committed, respectively). See, e.g., Cure v. State, 600 So.2d 415, 420 (Ala.Cr.App.), cert. denied, 600 So.2d 421 (Ala.1992) (indictments for rape and sodomy were not required to allege the times and places of the assaults; time is not a material ingredient of those offenses); Dilbeck v. State, 594 So.2d 168, 174 (Ala.Cr.App.1991) (indictment charging that the appellants committed first degree sodomy and first degree sexual abuse of young day-care victims, which set forth a time frame of approximately 10 years during which the charged incidents could have occurred, was not vague, ambiguous, and overbroad and thus did not hinder the preparation of a defense); Ruffin v. State, 582 So.2d 1159 (Ala.Cr.App.1991) (indictments charging second degree rape were not insufficient for failing to allege time and location); Hambley v. State, 565 So.2d 692, 693 (Ala.Cr.App.1990) (time is not a material ingredient of the offense of sexual abuse in the first degree and thus the indictment did not need to allege the time of the alleged offenses). ' "[U]nder our system of pleading, indictments are rather a statement of legal conclusions, than of facts." ' Copeland v. State, 456 So.2d 1150, 1151 (Ala.Cr.App.1984) (quoting Boyd v. State, 3 Ala.App. 178, 181, 57 So. 1019, 1019 (1912)). ' "An indictment is sufficient which substantially follows the language of the statute, provided the statute prescribes with definiteness the constituents of the offense." ' Copeland, 456 So.2d at 1151 (quoting Ex parte Allred, 393 So.2d 1030, 1032 (Ala.1980); an indictment charging first-degree rape in the language of the statute is sufficient to apprise the defendant of the charge against him). ' "[T]he prosecution clearly has no duty to provide more explicit notice than human nature and science permit." ' [People v. Jones ], 51 Cal.3d at 317, 270 Cal.Rptr. 611 at 624, 792 P.2d at 656 [ (1990) ] (quoting Judge Sims's special writing in People v. Gordon, 165 Cal.App.3d 839, 870-71, 212 Cal.Rptr. 174, 194 (1985)). See also [People v. Keindl ], 68 N.Y.2d at 419-20, 502 N.E.2d at...