R.A.S. v. State, CR-95-0102

• Decision Date: 03 July 1997
• Docket Number: CR-95-0102
• Citation: 718 So.2d 108
• Parties: R.A.S. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 108

718 So.2d 108

R.A.S. v. STATE.

CR-95-0102.

Court of Criminal Appeals of Alabama.

July 3, 1997.

Rehearing Denied Aug. 22, 1997.

Michael Dasinger, Robertsdale, for appellant.

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

PATTERSON, Retired Appellate Judge.

The appellant, R.A.S., appeals from his convictions for first degree sexual abuse of his stepdaughter A.M., § 13A-6-66(a)(3), Code of Alabama 1975; first degree sodomy of A.M., § 13A-6-63(a)(3), and second degree rape of A.M., § 13A-6-62(a)(1) (pursuant to a two-count indictment); 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). For the convictions for the offenses involving A.M., he was sentenced to 10 years' imprisonment, 25 years' imprisonment, and 20 years' imprisonment, respectively, and was fined $2,000, $5,000, and $3,500, respectively; the sentences were to run concurrently. For the convictions for the offenses involving C.M., he was sentenced to 10 years' imprisonment and 25 years' imprisonment, respectively, and was fined $2,000 and $5,000, respectively; the sentences were to run concurrently.

Because we are reversing those convictions based on our disposition of a single issue, we decline to address at this time the appellant's other issues. The dispositive issue is whether the trial court committed reversible error in failing to instruct the jury as to the specific instances of alleged molestation that the prosecution had elected to proceed on. To put this issue in perspective factually, we turn to the evidence presented to the jury.

A.M., who was 16 years old at the time of trial, testified that she did not really remember the first time the appellant molested her, but she did remember that it occurred when she was 6 years old. The first time she actually remembers occurred when she was about six years old, when the appellant touched her vaginal area while they were outside their home in Fort Morgan and he had been working on rebuilding a 1955 Chevy automobile. She testified that this kind of activity occurred more than once and that the appellant also touched her breasts. A.M. also described a specific incident that occurred after her father had come to visit her at her grandparents' residence: the appellant took her to her grandfather's toolshed and made her perform fellatio until he ejaculated. She could not remember the first time that he made her perform fellatio. She further testified that the "same type of behavior" continued after they moved to Florida; that it sometimes occurred in C.M.'s presence when the three of them went somewhere or when the victims' mother was not around; that until she was 10 or 11 years old, she was sexually abused by the appellant "[m]aybe once every two weeks"; and that after she reached the age of 10 or 11 years, her performing fellatio on the appellant "became almost like an everyday thing." She further stated that sometimes on trips to the store, the appellant made C.M. perform fellatio on him in her presence. She also testified that once, while the appellant was making her perform fellatio on him, C.M. came in and he commanded C.M. to perform fellatio. A.M. further testified that the appellant had sexual intercourse with her twice, but she specifically described only the incident that occurred in C.M.'s presence in a van.

Dr. John Franklin Shriner, a physician specializing in the examination of children who have been the victims of sexual abuse, testified that most of A.M.'s hymen had been destroyed, which he stated is consistent with a penetrating injury. He also testified that C.M. was too afraid to be examined. ¹

C.M., who was 13 years old at the time of trial, testified that before her twelfth birthday the appellant touched her "bottom front private" more than once and made her perform fellatio on him while he was sitting in a chair. She further testified that, after her twelfth birthday, the appellant rubbed his penis against her "bottom front" while she was sitting on a filing cabinet. She also testified that she observed A.M. perform fellatio on the appellant more than once--while the appellant was driving his vehicle, in her grandfather's shed, and at two houses in Summerdale.

The prosecution also presented evidence of the victims' prior statements concerning the appellant's abusive behavior. The investigator for the Baldwin County Department of Human Resources testified that A.M. told her, among other things, that the appellant's molestation was frequent and that when she was younger, it happened every day. She also testified that C.M. told her, among other things, that the appellant's molestation had occurred on several occasions. Officer Lawrence Griffith, a child sexual abuse investigator, testified that he understood A.M. to state that she had been abused on more than 50 occasions by the appellant.

Officer Griffith also testified as follows regarding the appellant's statement taken prior to his arrest. In regard to A.M., the appellant admitted that A.M. had performed fellatio on him six to eight times "off and on [for] probably about 6 years," including approximately four times in the previous two years; that his abuse of A.M. started when they were living in Orange Springs, Florida; that it had been triggered by flashbacks of the sexual abuse he claims he suffered almost every day from the time he was 8 or 9 years old until he was 15; that the first incident of fellatio occurred when he was taking A.M. to school and he bribed her with candy; that the next incident was 2 or 3 months later and then a long time passed before it occurred again; that his most recent act of fellatio with A.M. was about six weeks before he made the statement; that A.M. would stimulate him until he ejaculated; that he had never had vaginal intercourse with A.M., although he said that once within two years before he made the statement he had "rubbed" her vaginal area with his penis; that he had rubbed A.M.'s vaginal area with his hands; and that he had touched A.M.'s breasts once. The appellant admitted to the following in regard to C.M.: that he had rubbed C.M.'s breasts and vaginal area with his hands, but that he had never tried to penetrate her; that C.M. had performed fellatio on him three or four times, all within the year before he made the statement; that when he first told C.M. what he did with A.M., she did not want to participate, so he got A.M. to persuade C.M. in exchange for permission to do something that they really wanted to do; that his most recent act of fellatio was with C.M. and that it had occurred the Friday before he made the statement; that on this last occasion, A.M. was at cheerleading practice and his wife was at the store; and that he had stopped her before he ejaculated because "something clicked in [his] mind and just told [him], 'You're doing wrong and you need help.' " He also stated that in the past year he made one of the victims act as a lookout while he abused the other victim and that sometimes he would have both of them perform fellatio on him. In explaining the victims' long silence as to the molestation, the appellant stated that he told them that if they ever told, he would be arrested; that adults could only go to prison, that they could not get help; and that rather than go to jail, he would kill himself. The appellant also stated that "it was like [he] had no control"; that he "want[ed] to get this out of [him]," but he was worried about going to jail and losing his family; that he was glad the victims came forward because he did not want their lives "messed up" like his; that he wanted the victims and himself to get help; and that he was sorry.

The prosecution also presented the following evidence that the appellant engaged in flight: that the appellant and his wife (the victims' mother) absconded and their bondsman did not see them again after he made bond for the appellant's wife on October 3, 1994; that the bondsman's investigator went to Fort Collins, Colorado, after finding out that the appellant had been arrested there and had made bond; that the investigator then followed the appellant toward Canada, and then to various locations in Florida, and finally to a deserted island off the Florida coast where he found the appellant "under water with his body submerged and just his lips out of the water under a limb hiding in the ocean"; and that the appellant never voluntarily returned to Baldwin County.

On this evidence, when defense counsel made a motion after the prosecution rested requesting that the prosecution elect which incidents it intended to prosecute, ² the prosecutor elected the following specific incidents:

(1) As to the indictment charging the appellant with first degree sexual abuse of A.M., "the incident when [A.M.] was approximately 6 years old in the Gulf Shores area when the Defendant touched her vagina with his hand and she remembers that he had a car that he was working on."

(2) As to the indictment charging the appellant with first degree sodomy of A.M., "the specific time that she remembers it happening in her early childhood after January 1985[ ³] as shown by the testimony of [the victims' father], and that sodomy occurred in Baldwin County at her maternal grandmother's house."

(3) As to the indictment charging the appellant with the second degree rape of A.M., "the incident where [A.M., C.M., and the appellant] were in the van and [the appellant] took her to the back of the van and had her have sexual intercourse with him ... in the fall of 1993."

(4) As to the indictment charging first degree sexual abuse of C.M., "prior to Christmas 1993, ... a time at their home in Summerdale when the Defendant touched her bottom private, vaginal area and buttocks."

(5) As to the indictment charging first degree sodomy, "at a time prior to Christmas 1993, one time while riding in a car with her sister [A.M.], [the appellant] ...