Reed v. State

• Decision Date: 30 June 1987
• Docket Number: 1 Div. 418
• Citation: 512 So.2d 804
• Parties: Lester Wilson REED v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 804

512 So.2d 804

Lester Wilson REED v. STATE.

1 Div. 418.

Court of Criminal Appeals of Alabama.

June 30, 1987.

Rehearing Denied July 28, 1987.

Robert F. Clark of Clark, Deen & Copeland, Mobile, for appellant.

Don Siegelman, Atty. Gen., and Tommie Wilson, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Lester Wilson Reed was charged in a two-count indictment with first degree sexual abuse, in violation of § 13A-6-66, Code of Alabama 1975, and attempted rape, in violation of §§ 13A-6-61(a)(3) and 13A-4-2, Code of Alabama 1975. (R. 1) The jury found the appellant "guilty of sexual abuse in the first degree." He was sentenced to imprisonment in the state penitentiary for a term of five years, three years of said sentence to be suspended pending his good behavior. (R. 27)

The alleged victim in this case was the appellant's daughter, C.R., who was nine years old at the time of trial (September 24, 1986).

The prosecutrix testified as to five separate incidents wherein she was sexually molested by the appellant. (R. 11-15) Two of the incidents allegedly occurred when the prosecutrix was approximately seven years old and while the family was living in a trailer in Washington County, Alabama. (R. 33)

The other three incidents occurred at some point after the appellant and his wife had obtained a divorce. These incidents occurred around the time of the prosecutrix's eighth birthday while she was living in an apartment in Citronelle in Mobile County, Alabama.

Approximately one month after the fifth incident the prosecutrix reported the appellant's actions to her mother. She delayed reporting the incidents because she was afraid her father (the appellant) would "get mad" at her. (R. 17)

Ellen Reed, the prosecutrix's mother, testified that the appellant was her ex-husband. She had five children from her marriage to the appellant. The prosecutrix is the oldest child.

The appellant and Ms. Reed were married and divorced twice, the last divorce occurring in December of 1984. The appellant and Ms. Reed were first married in 1976 and obtained their first divorce in 1981. They were remarried in 1982. (R. 32) Ms. Reed testified that she and the prosecutrix lived in a house trailer in McIntosh, Alabama from 1976 until 1984, at which time they moved to Citronelle, Alabama.

The prosecutrix reported the incidents to Ms. Reed on October 13, 1985. The following day Ms. Reed took the prosecutrix to a Dr. Jack Thompson for a medical examination. Dr. Thompson found evidence of some irritation in the genital area but no evidence of penetration. (R. 38)

Ms. Reed testified that she noticed a change in the prosecutrix's behavior during 1985. During cross-examination she admitted that she and the appellant had fought in front of the children and that, after the divorce in 1984, she and the appellant had had arguments concerning her boyfriend of whom the appellant did not approve. (R. 43)

Ms. Reed continued seeing the appellant after the prosecutrix reported the incident to her. (R. 42)

Dr. Jack Thompson, the prosecutrix's pediatrician, testified on behalf of the defense. The prosecutrix was treated for encephalitis in 1983. He attributed the prosecutrix's behavorial abnormalities to residual effects from the encephalitis. (R. 14) Dr. Thompson testified that, when he examined the prosecutrix after the alleged incidents occurred, she did not seem to be "psychologically distressed." (R. 122) He found no evidence that anything had been inserted into the child's vagina and there was no sign of irritation present. (R. 118)

Several witnesses testified to the appellant's good reputation for truth and veracity.

Larry Faison, a psychological counselor and examiner who examined the appellant, testified that, based on the results from a "Personality Inventory" test administered to the appellant, the appellant showed no signs of pathology. His sexual and social values were normal according to the test. (R. 96) Mr. Faison saw no symptoms in the appellant normally associated with criminal behavior. (R. 104) He saw an extraordinary amount of anxiety present in the appellant. (R. 96)

I

The appellant contends that the trial court erred in submitting the five separate incidents of sexual abuse, of which the prosecutrix testified, to the jury where none of the incidents were specified as that upon which a conviction was sought under the indictment at issue. He argues that the jury received no guidance or indication whatsoever as to which incidents were the subject of this indictment, and which incidents were admitted merely because they were probative of his commission of the offense charged. He argues specifically that the trial judge should have compelled the State to elect which incident it was seeking to prove under the indictment.

This issue was preserved for our review. (R. 107-110) See Deason v. State, 363 So.2d 1001 (Ala.1978); Dietz v. State, 474 So.2d 120 (Ala.Crim.App.1984), rev'd on other grounds, 474 So.2d 127 (Ala.1985); Cowan v. State, 460 So.2d 284 (Ala.Crim.App.), writ denied, 460 So.2d 287 (Ala.1984).

After the defense rested, subject to the testimony of a temporarily absent witness, the court and the parties discussed the charges that would be given to the jury. (R. 105-108) The appellant then renewed his motion for judgment of acquittal:

"THE COURT: Well, Ms. Vivar, you have got forty-five minutes more to think about it. Did you have any charges or anything?

"MR. CLARK: No, sir. Judge, I would renew my motion for a directed verdict of acquittal and add in addition to the grounds previously assigned that the State has failed, if your Honor will allow certain testimony to be introduced, wherein the State said that they would show time and place. The State has never proven any time and place. Now, this is important, Your Honor, because if they are claiming an incident that may or may not have happened in a trailer, then you have got a venue question because the trailer was in Washington County. The State has never proven venue. Whether it happened in Mobile County or in Washington County. They have never said what incident they are relying on as the incident that is charged in the indictment. Now, it's my understanding of the law that Your Honor can let in subsequent--I mean, can let in acts--prior acts of the same caliber but I will venture to say that I can't tell which is the act they are complaining of and which is the acts that they are offering as similar prior acts. The State never proved which act under the indictment they are complaining about. It's a venue problem.

"MS. VIVAR: Well, Your Honor, there was testimony to the effect that there were three different occasions in Mobile County. These were subsequent to the Washington County incidents. Of course, the Washington County ones are not what we are talking about in here.

"MR. CLARK: I don't know that, Judge.

"MS. VIVAR: It goes to intent, though, and certainly is admissible as to intent, and that's what it was brought in to show. But we have, you know, we did not allege a date in the indictment and we are not required to get a specific day, time, whatever. We don't have it in the indictment and we don't have to prove that. We have got it narrowed down to a year between 1984 and 1985, the incidents we are talking about; the latest one being approximately one month before the child told her mother in 1985.

"MR. CLARK: Judge, what I am saying, I don't think the Court and I don't think the jury can say this is the incident we've got to find is true or not true and these are the incidences that are similar in nature that was allowed in for some reasons. Your Honor asked Ms. Vivar if she was going to link it up and she said yes, and she never has. Now, I don't know which incident that I am called on to defend and which ones are predicate acts of a similar kind. And I don't think you can say that this is the act that they have named in that indictment.

"THE COURT: I deny your motion.

"(Off the record)

"(Jury present:)" (R. 107-110) (emphasis added)

We agree with the appellant that his counsel's argument sufficiently raised the issue of whether or not an election was required. Because the trial judge subsequently overruled his motion, and especially in light of the fact that the potential for a venue problem existed in connection with this issue, we deem it appropriate to consider the appellant's contentions on appeal concerning the requirement of an election.

"In a rape case, the State may introduce proof of sexual relations between the accused and prosecutrix before and after the act on which the prosecution is based. Ex Parte Deason, 363 So.2d 1001 (Ala.1978). However, the accused cannot be convicted on the other acts of sexual intercourse which are not the subject of the indictment. Deason, supra. Thus, an election is required by the State in such cases so that the accused will only be convicted for the offense charged in the indictment."

Knight v. State, 495 So.2d 712, 713 (Ala.Crim.App. 1986).

"It has long been held that different offenses of the same character may be properly joined in a single indictment:

'A careful solicitor should always frame the indictment with as many counts as may be necessary to meet the different phases the evidence may assume. Embezzlement and larceny, burglary and larceny, larceny and receiving stolen property, and offenses of like character may properly be joined in separate counts in the same indictment....' Orr v. State, 107 Ala. 35, 18 So. 142 (1895); Rose v. State, 117 Ala. 77, 23 So. 638 (1898); Perry v. State, 25 Ala.App. 224, 143 So. 835, cert. denied, 225 Ala. 441, 143 So. 836 (1932); McDaniel v. State, 30 Ala.App. 447, 7 So.2d 583 (1942).

"As noted by our Supreme Court in Deason v. State, 363 So.2d 1001 (Ala.1978), '[T]his is permissible under our statute [ § 15-8-52, Code of Alabama 1975] ... and places no obligation upon the prosecution to elect beforehand which of those offenses it intends to prove.' This...