S.A.J. v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: KELLUM, Judge.
• Citation: S.A.J. v. State, 195 So.3d 327 (Ala. Crim. App. 2015)
• Decision Date: 29 May 2015
• Docket Number: CR–13–1872.
• Parties: S.A.J. v. STATE of Alabama.

195 So.3d 327

S.A.J.

v.STATE of Alabama.

CR–13–1872.

Court of Criminal Appeals of Alabama.

May 29, 2015.

Rehearing Denied June 19, 2015.

Certiorari Denied Oct. 23, 2015

Alabama Supreme Court 1141055.

Lisa M. Ivey, Jasper, for appellant.

Luther Strange, atty. gen., and John M. Porter, asst. atty. gen., for appellee.

KELLUM, Judge.

The appellant, S.A.J.,¹ was indicted by a Walker County grand jury for rape in the first degree, a violation of § 13A–6–61, Ala.Code 1975, and three counts of sexual abuse in the first degree, a violation of § 13A–6–66, Ala.Code 1975. S.A.J. was convicted of three counts of first-degree sexual abuse, as charged in the indictment and one count of first-degree sexual abuse as a lesser-included offense to the offense of first-degree rape. The circuit court sentenced S.A.J. to 20 years' imprisonment for each conviction; it ordered that the sentences were to run concurrently. The circuit court further ordered S.A.J. to pay $200 to the crime victims compensation fund and court costs.

The record established the following pertinent facts. A.B. testified that, when she was four years old, she spent some time with her cousin, J.W., at J.W.'s house in Walker County. A.B. indicated that J.W. and her mother lived in the house with A.L., A.L.'s girlfriend, A.L.'s two children, and J.W.'s two brothers. A.B. recalled meeting S.A.J. at the house and indicated that he had a “little beard looking thing,” had brownish-blackish color hair, and always wore a red jacket. (R. 166.) A.B. testified that she knew S.A.J. as “Boggan” because it was his nickname used by everyone else in the house. (R. 167.)

A.B. testified that she and J.W. were playing outside one day when S.A.J. approached them and said that he had something to show them. S.A.J. then took the girls into a tent behind the house and had them lie down beside each other. S.A.J. then removed the girls' clothing, held a small knife to A.B.'s throat, and threatened to kill her grandmother if she told anyone. A.B. testified that S.A.J. then touched the girls with “his fingers and his hogie.”² (R. 171.) A.B. testified that S.A.J.'s fingers and his hogie were both outside and inside of her vagina. As he was touching her, S.A.J. called A.B. “Sexy Lexi,” and it made her feel “weird.” (R. 172–73.) A.B. testified that S.A.J. used his fingers to touch J.W.'s butt and that he also “stuck [his hogie] inside of [the girls].” (R. 174.) A.B. testified that S.A.J.'s hogie was inside of her vagina for a few minutes. A.B. testified that after S.A.J. was finished, he took a blue marker and marked a blue dot on each girl.

A.B. testified that she did not tell anyone about the incident because S.A.J. threatened to kill her grandmother. A few days after the incident, A.B. and J.W. were discussing the event when they were overheard by J.W.'s mother, D.W., who made the girls tell her what had happened.

J.W. testified that when she was five or six years old, A.B. would occasionally come over to her house to play. J.W. indicated that she and A.B. would spend most of their time playing outside. J.W. remembered that S.A.J. had brown hair and a beard, but could not remember anything else about his appearance. J.W. indicated that her memory of the events was hazy. J.W. testified that she recalled an incident where her mother confronted S.A.J. with a gun and asked J.W. if “he was the one that molested [the girls].” (R. 206.) When J.W. shook her head, her relatives took S.A.J. outside and beat him up. J.W. testified that the incident occurred behind the house and that was all she could remember.

J.W. testified that she remembered standing next to D.W.'s bed with A.B. a few days after the incident and discussing what had happened. J.W. also spoke to a therapist about the incident but indicated that she had coped with the incident by trying not to talk about it.

Joanna Milkay, a certified counselor and the clinical director at the Clay House Children's Center, interviewed A.B. and J.W., separately. According to Milkay, J.W. was “avoidant” during the interview and answered questions with “a lot of I don't knows or I don't remember.” (R. 241.) J.W. also repeatedly asked Milkay to talk to A.B. for details of the incident. Milkay testified that A.B.'s interview was typical for a four-year-old; A.B. would move around the room, and she had difficulty concentrating. Although A.B. was able to tell Milkay some of the things that happened, she was unable to give any details or narrative of the incident. Both interviews were recorded, admitted into evidence, and played for the jury.

In the recorded interviews, J.W. indicated that S.A.J. undressed her and touched her vagina with his hand. A.B. told Milkay that S.A.J. hugged her with his pants off and touched her and J.W. with his finger. A.B. indicated that S.A.J. also tried to get J.W. to touch his “hogie.” A.B. stated that S.A.J. used his “hogie” to touch her vagina.

D.W. testified that she married K.W. in February 2007. D.W. testified that she knew S.A.J. as K.W.'s cousin and considered him family. D.W. testified that S.A.J. was close with her family and would visit their house frequently. D.W. also indicated that A.B. was her niece and that A.B. would often spend the night at D.W.'s house.

D.W. testified that she became concerned that something had happened to A.B. and J.W. when she noticed an incident where J.W. acted shy around S.A.J. and tried to get away from him. Until that time, J.W. had been close to S.A.J. and normally wanted to play with him. On a later night, A.B. was staying over at D.W.'s house when she woke up crying and said that “the man in the red coat had ... done things” to both her and J.W. (R. 261.) D.W. spoke with A.B. and J.W. in her bedroom about the incident but could not remember the specific details. Afterwards, D.W. informed A.B.'s mother and grandmother, B.B., of the incident. D.W. did not initially report the incident to law enforcement because she had previously had a bad experience when she filed a report about someone hurting her sons.

Around two weeks after A.B. and J.W. informed D.W. about “the man in the red coat,” S.A.J. returned to the house. When J.W. confirmed that S.A.J. “was the one that truly did it,” D.W. and her brother attacked and beat S.A.J. Afterwards, D.W. and B.B. went to the police and filed a report against S.A.J.

B.B. testified that she was A.B.'s grandmother and legal guardian. B.B. testified that A.B. had stayed overnight at J.W.'s house on a number of occasions. On one such occasion, B.B. was driving and received a telephone call. After learning what had happened, B.B. drove to pick A.B. up from D.W.'s house. When B.B. asked A.B. what had happened, A.B. replied that she could not tell B.B. because S.A.J. threatened to kill B.B.

Whenever B.B. would bathe A.B., A.B. would ask if her “tee-tee hole [was] really big ... [and if] it [was] all stretched out down there?” (R. 396.) When A.B. contracted a yeast infection, B.B. became worried that she had possibly contracted a disease from the incident and took her to the doctor. A medical examination revealed that A.B. had a little bit of irritation in her genital area and a rash on her bottom. The health-service provider prescribed an ointment to treat these symptoms.

B.B. testified that A.B.'s behavior changed after the incident. According to B.B., A.B. was an active child who liked cheerleading and enjoyed playing with her father. After the incident, A.B. would not let her father or any other man touch or hug her.

When A.B. learned that S.A.J. had been beaten up by J.W.'s relative, she asked B.B. if “they cut off all his fingers.” (R. 453.) A.B. indicated that she wanted all of S.A.J.'s fingers cut off because “he hurt [A.B.] with those fingers.” (R. 454.) B.B. also indicated that she had seen thumbprints and handprints on the inner part of A.B.'s thighs, as though they had been pried open and held.

S.A.J. testified in his own defense. S.A.J. indicated that K.W. was his cousin and had “been like an uncle” to S.A.J. before he died. (R. 580.) S.A.J. indicated that he was previously addicted to painkillers and would often go to K.W.'s house and buy Oxycontin pills from the adults at the house, including K.W. and D.W. According to S.A.J., there “was a lot of traffic” at K.W.'s house because all the adults living there sold Oxycontin pills to “anybody who came up at the time.” (R. 584.) S.A.J. did not have a job to pay for Oxycontin pills so he would perform handiwork around their property in exchange for the pills.

S.A.J. testified that he knew both A.B. and J.W. and that he remembered a time in which they were outside playing in the yard. According to S.A.J., it was around the first weekend of February and there were other adults present. S.A.J. indicated that the only time he remembered interacting with the girls was when he tried to teach them how to do a flip on the trampoline. S.A.J. could not recall seeing a tent on the property. S.A.J. denied ever seeing the girls without clothes, removing their clothes, touching them in any sexual way, or exposing himself to them.

S.A.J. testified that on February 20, 2007, his sister dropped him off at K.W.'s house. When he arrived, D.W. threatened S.A.J. with a gun and made accusations against him; D.W.'s brother punched him in the face, breaking his jaw in two places. Afterwards, S.A.J. telephoned the authorities and indicated that he had been assaulted and told the authorities everything that he had been accused of doing to A.B. and J.W.

After both sides rested and the circuit court instructed the jury on the applicable principles of law, the jury found S.A.J. guilty of three counts of sexual abuse in the first degree, as charged in the indictment. The jury also found S.A.J. guilty of an additional count of sexual abuse in the first degree as a lesser-included offense to the offense of rape in the first degree.

I.

S.A.J. contends that the circuit court erred when it allowed the prosecutor to comment directly on S.A.J.'s right...