Sanders v. State

• Decision Date: 31 August 2007
• Docket Number: CR-06-0143.
• Citation: 986 So.2d 1230
• Parties: Kenneth Wayne SANDERS v. STATE.
• Court: Alabama Court of Criminal Appeals

986 So.2d 1230

Kenneth Wayne SANDERS v. STATE.

CR-06-0143.

Court of Criminal Appeals of Alabama.

August 31, 2007.

Rehearing Denied October 26, 2007.

Certiorari Denied December 7, 2007 Alabama Supreme Court 1070261.

Mickey L. Johnson, Pelham, for appellant.

Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.

PER CURIAM.

The appellant, Kenneth Wayne Sanders, was convicted of enticing a child for immoral purposes, a violation of § 13A-6-69, Ala.Code 1975, and sexual abuse in the first degree, a violation of § 13A-6-66, Ala.Code 1975. The trial court sentenced Sanders to 5 years' imprisonment for the enticement conviction and 10 years' imprisonment for the sexual abuse conviction, the sentences to be served concurrently.

The State's evidence tended to show the following: A.E., who was 10 years old at the time of trial, testified that Sanders, her paternal stepgrandfather, touched her on her breasts and privates and showed her pictures on a computer screen of sexual images involving adults. She said that he would play a game with her called "shark," that he would "reel her in," and that he would put her on his lap and touch her inappropriately. A.E. testified that Sanders touched her many times and that she finally told her grandmother, Sanders's ex-wife, because, she said, it "didn't feel right."

Joanna Milkay, a forensic interviewer with the Bessemer Child Advocacy Center, testified that she interviewed both A.E. and her sister and that it was her opinion that A.E. had been sexually abused.

Sanders testified in his own defense and denied any wrongdoing.

On appeal, Sanders contends that the trial court erred in allowing both a lay witness and an expert witness to give opinion testimony concerning the ultimate issue. Specifically, Sanders contends that the trial court erred in allowing Milkay to testify that, in her opinion, A.E. had been sexually abused. He also contends that the trial court erred in allowing Sanders's ex-wife, C.E., to testify that she originally did not know whether to believe A.E., but that at the time of trial she believed A.E.

"`The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion."' Barrett v. State, 918 So.2d 942, 946 (Ala.Crim.App.2005), quoting Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000).

First, Sanders contends that Milkay's testimony should have been excluded because, he argues, it embraced the ultimate issue to be determined by the jury. However, Milkay did not express an opinion as to Sanders's guilt or innocence. Instead, she testified that, in her opinion, A.E. had been sexually abused. We have held that the ultimate issue in similar cases is whether the defendant had sexually abused the child, not whether the child had in fact been sexually abused. See Lee v. State, 565 So.2d 1155 (Ala.Crim.App. 1990). Experts are permitted to testify concerning their opinion as to whether a child has been sexually abused. Kennedy v. State, 929 So.2d 515, 519 (Ala.Crim.App. 2005). In Harrington v. State, 858 So.2d 278 (Ala.Crim.App.2002), we stated:

"`This Court has said:

"`"Rule 704, Ala.R.Evid., provides that `[t]estimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.' However, in the case of expert testimony, enforcement of this rule has been lax. C. Gamble, Gamble's Alabama Rules of Evidence § 704 (1995). We have noted previously in Travis v. State, 776 So.2d 819 at 849 (Ala.Cr.App.1997), that expert testimony as to the ultimate issue should be allowed when it would aid or assist the trier of fact, and the fact that `"`a question propounded to an expert witness will elicit an opinion from him in practical affirmation or disaffirmation of a material issue in a case will not suffice to render the question improper'"' (citations omitted); see also Rule 702, Ala.R.Evid. (stating that expert testimony should be allowed when it will aid or assist the trier of fact)."

"`Henderson v. State, 715 So.2d 863, 864-65 (Ala.Crim.App.1997).'

"[Fitch v. State,] 851 So.2d [103] at 117 [(Ala.Crim.App.2001)]. Accord, Henderson v. State, 715 So.2d 863, 865 (Ala.Crim.App.1997); Perkins v. State, 808 So.2d 1041, 1106 (Ala.Crim.App. 1999), aff'd, 808 So.2d 1143 (Ala.2001).

"Therefore, even if the experts' testimony had been directed to the ultimate issue, and we conclude that it was not, the testimony should have been admitted because it would have aided the jury in its resolution of the case."

858 So.2d at 296. Thus, there was no error in allowing Milkay's testimony.

Second, Sanders questions the admission of the opinion testimony of C.E. that she believed A.E.'s accusations. The record shows that the following occurred on direct examination of C.E.:

"Q. What did you do when you heard what had happened?

"A. I was shocked.

"Q. Okay. Did you talk to anybody about it? Did you call anybody?

"A. I talked to my son, I talked to [A.E.]'s grandfather, and that's all, until I called Kenny [the defendant].

"Q. Okay. And when you called Kenny, what did you say to Kenny.

"A. I called Kenny, and I told him that [A.E.] had made some accusations against him and that he needed to get out of my house.

"Q. Okay. Now, did he say anything to you then?

"A. Yes. He said, `You're kidding.' And I said — asked him if I sounded like I was kidding. And then I told him to get his stuff and get out.

"Q. Okay. And was he there when you got home?

"A. No.

"....

"Q. Okay. Now, at some point, did you talk to someone from the Sheriff's Department?

"A. Yes.

"Q. Okay. Do you remember who you talked to?

"A. Yes. I talked to Shane Bates.

"Q. Okay. And when you talked to him, at that time, were you struggling with these accusations?

"A. Very much so.

"Q. Okay. Was there a time when you just didn't know who to believe?

"A. Yes.

"Q. Okay. Who do you believe now?

"A. [A.E.]

"MR. JOHNSON [defense counsel]: Your honor, I would move that [that] be stricken. That invades the province of the jury. Calls for a conclusion from the witness and an opinion.

"THE COURT: Overrule.

"MR. JOHNSON: Admonish the jury to disregard it.

"THE COURT: Overrule."

(R. 156-59.)

Rule 701, Ala. R. Evid., addresses the admissibility of opinion evidence by a lay witness, and provides:

"If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue."

The Advisory Committee's Notes to Rule 701 state that "[n]o lay witness may give an opinion based upon facts that the witness did not personally observe." The committee's notes continue: "It is clear, however, that opinions should be excluded as not being helpful if they are `meaningless assertions which amount to little more than choosing up sides.'" Rule 701, Ala. R. Evid., Advisory Committee's Notes, quoting Rule 701, Fed.R.Evid., Advisory Committee's Note. See also, 2 Charles W. Gamble, McElroy's Alabama Evidence § 127.01(3) (5th ed. 1996) ("In no instance may a lay witness give an opinion unless possessed of a firsthand knowledge of the facts upon which the opinion is based.").

Rule 704, Ala.R.Evid., also states that "[t]estimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact."

Here, C.E. testified that she had struggled with A.E.'s accusations against her ex-husband, but that she now believed A.E. Edwards was expressing an opinion regarding A.E.'s credibility, i.e., whether A.E. was a truthful child. Although C.E. may not have had firsthand knowledge of the facts surrounding A.E.'s accusations, as A.E.'s grandmother she certainly had firsthand knowledge concerning A.E.'s credibility generally. Certainly, whether A.E. was generally truthful would have been helpful to the jury when weighing A.E.'s credibility against Sanders's. Also, though admittedly A.E.'s credibility was a crucial issue in this case, the ultimate issue was whether Sanders sexually abused A.E.

Nonetheless, Alabama has long held that the credibility of a witness is a question solely for the jury's determination. See, e.g., Cason v. State, 515 So.2d 719, 720 (Ala.1987); Smith v. State, 698 So.2d 189, 214 (Ala.Crim.App.1996), aff'd, 698 So.2d 219 (Ala.1997). Therefore, allowing C.E. to express an opinion as to A.E.'s credibility could arguably have invaded the province of the jury. However, for the following reasons we conclude that the admission of this testimony was harmless beyond a reasonable doubt.

In Inmon v. State, 585 So.2d 261 (Ala. Crim.App.1991), this Court held that the testimony of an expert witness as to whether the victim in a sexual-abuse prosecution of the victim's stepfather was being truthful when she reported sexual abuse by a babysitter was not prejudicial to the defendant's substantial rights, even though it tended to invade the province of the jury by pointing to an inference that the victim was being honest about the report of abuse by the defendant. We also noted:

"In addition, this Court has followed the modern trend of allowing expert testimony in child sexual abuse cases notwithstanding the fact that the testimony encroaches on the function of the jury, if the evidence assists the jury in resolving a matter beyond the knowledge of the average juror. See, e.g., Sexton v. State, 529 So.2d 1041, 1049-50 (Ala.Cr. App.1988).

"`With "near unanimity" courts have recognized that this type of expert testimony can assist the jury in understanding the evidence introduced in child sexual assault cases. State v. Catsam, 148 Vt. 366, 534 A.2d 184, 187 (...