Strough v. State, 3 Div. 301

• Decision Date: 08 April 1986
• Docket Number: 3 Div. 301
• Citation: 501 So.2d 488
• Parties: Tommy STROUGH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 488

501 So.2d 488

Tommy STROUGH v. STATE.

3 Div. 301.

Court of Criminal Appeals of Alabama.

April 8, 1986.

Rehearing Denied July 15, 1986.

On Return to Remand Dec. 30, 1986.

Frank L. Thiemonge, III, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen. and Beatrice E. Oliver, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant was indicted for sexual abuse in the first degree, a violation of § 13A-6-66, Code of Alabama 1975. A jury found the appellant guilty as charged in the indictment and he was sentenced to ten years' imprisonment in the state penitentiary. This sentence was later suspended and the appellant was given a one-year sentence in the county jail, with four years' probation to be served afterwards.

The record indicates that the victim, a nine-year-old girl, lived next door to the appellant at the time the incident in question occurred. In December of 1984, the girl went to the appellant's house to play with his niece and nephew, who were visiting. She testified that while the appellant's wife and the two other children were in a back bedroom, the appellant placed her in his lap, put his hand up her shirt, and started squeezing her breasts. The little girl began to cry and asked the appellant to stop. Instead of stopping, the appellant began rubbing the inside of her legs. The girl screamed and ran back to her house, where she immediately informed her aunt and uncle of what had happened.

I

Before trial, the appellant filed a motion entitled "Motion for Court Reporter to Record Statement," in which he requested that the trial court order the court stenographer to include the opening statements and summation of the parties in the official transcripts. The record on appeal does not contain a recitation of the opening or closing statements of either the state or the defendant. The appellant admits that the trial court never made a ruling on his motion, but asserts that the court's failure to make a ruling constitutes a denial of the motion. Appellant's position is against the great weight of authority in this state. "The law is well settled in Alabama that, to reserve appellate review of a motion, an adverse ruling from the trial court must be secured." Livingston v. State, 419 So.2d 270, 273 (Ala.Cr.App.1982); Carroll v. State, 405 So.2d 163 (Ala.Cr.App.1981); Murphy v. State, 403 So.2d 314 (Ala.Cr.App.), cert. denied, 403 So.2d 316 (Ala.1981). Since there is nothing in the record to indicate that the motion was ruled on by the trial court or that the appellant brought to the court's attention its failure to make a ruling, this court has nothing to review.

II

The appellant also contends that the trial court improperly restricted his cross-examination of the victim. During the appellant's cross-examination of the girl, the judge sustained the state's objection to the following question.

"Q: Is your mother married now?

"MR. JAMES: Judge, I'm going to object at this time.

"THE COURT: Sustained.

"MR. THIEMONGE: Your honor, this is cross-examination.

"THE COURT: Well, as to whether the mother is married--

"MR. THIEMONGE: I'm moving towards something, your Honor.

"MR. JAMES: I'll object to what he is moving into, Judge.

"MR. THIEMONGE: May I approach the bench, your Honor?

"THE COURT: Come around here and make a showing to me."

After a brief, off-the-record discussion, the court ruled that the appellant's question as to the marital status of the victim's mother was improper cross-examination. No basis for the ruling appears in the record. This court has consistently held that the extent of cross-examination is a matter within the sound discretion of the trial court and that its ruling will not be disturbed on appeal unless clear abuse is shown. Blackmon v. State, 449 So.2d 1264 (Ala.Cr.App.1984); Terry v. State, 447 So.2d 1322 (Ala.Cr.App.1984); Renfroe v. State, 382 So.2d 627 (Ala.Cr.App.), cert. denied, 382 So.2d 632 (Ala.1980). The trial court may properly limit questioning that is irrelevant or which relates to a wholly collateral matter. Daniels v. State, 375 So.2d 523 (Ala.Cr.App.1979). We find no abuse of the trial court's discretion in this instance.

III

The appellant also contends that the trial court abused its discretion in ordering that he pay $1,353.60 in restitution to Charles Graham, the uncle and guardian of the victim. Under the "Restitution to Victims of Crimes Act," a victim is entitled to reasonable compensation for any pecuniary damages which result either directly or indirectly from the defendant's criminal action. Sections 15-18-65, et seq., Code of Alabama 1975.

The facts adduced at the restitution hearing indicate that shortly after the sexual abuse incident occurred, the girl moved to another city with her aunt and uncle. Mr. Graham testified that he and his family moved to Thorsby, Alabama, because he "wanted to get the child away from the defendant." After moving to Thorsby, Mr. Graham continued working in Montgomery at a job he had held for many years, commuting the 60 miles back and forth each day. In addition, evidence was presented that Mr. Graham lost four days' pay due to his attendance at trial. Although Mr. Graham did not testify at trial, he stated that his presence was needed After hearing all of the evidence presented by the state in support of granting restitution, the court ordered the appellant to compensate Mr. Graham for various expenses, including wages lost due to his attendance at trial, gasoline expenses incurred in traveling from his home in Thorsby to the courthouse during the four-day trial, the cost of moving from Montgomery to Thorsby, and expenses incurred by Mr. Graham in commuting to and from work each day. The appellant maintains that Mr. Graham is not entitled to such compensation under the provisions of the Alabama restitution act.

because of the emotional state of his wife, who did testify.

The purpose of the legislature in passing the restitution act was to fully compensate victims of crime who suffer "any pecuniary loss, damage or injury as a direct or indirect result" of a criminal act. § 15-18-65, Code of Alabama 1975. (Emphasis supplied). The term "victim" is broadly defined by the Statute to include "[a]ny person who the court determines has suffered a direct or indirect pecuniary damage as a result of the defendant's criminal activities." § 15-18-66(4), Code of Alabama 1975.

Section 15-18-66(2), Code of Alabama 1975, provides that a victim may recover from a convicted defendant all special damages which a person could recover in a civil suit. Special damages are those which flow naturally, but not necessarily, from a wrongful act. McLendon Pools, Inc. v. Bush, 414 So.2d 92 (Ala.Civ.App.1982). Although the restitution statute is broad in scope, there are nevertheless some limits upon the extent to which a victim may recover for pecuniary loss. Before a defendant can be held liable for damages, it must be established that his criminal act was the proximate cause of the injury sustained by the victim. Bush v. Alabama Power Company, 457 So.2d 350 (Ala.1984); Ruffin Coal & Transfer Company v. Rich, 214 Ala. 633, 108 So. 596 (1926). "The proximate cause of an injury is the primary moving cause without which it would not have occurred, but which, in the natural and probable sequence of events, produces the injury." City of Mobile v. Havard, 289 Ala. 532, 538, 268 So.2d 805 (Ala.1972); see also, Vines v. Plantation Motor Lodge, 336 So.2d 1338 (Ala.1976). As our Supreme Court observed in Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975), foreseeability is the cornerstone of proximate cause. This does not mean, however, that the defendant must have actually foreseen the particular injury which resulted from his action. Rather, the injury sustained by the victim must have been of such a nature that a reasonable person could have foreseen or anticipated that the injury might occur as a natural consequence of the action. Williams v. Woodman, 424 So.2d 611 (Ala.1982); Prescott v. Martin, 331 So.2d 240 (Ala.1976). Where an injury is caused by intentional conduct, the rules of proximate cause are more liberally applied. Phillips v. Smalley Maintenance Services, Inc., 435 So.2d 705 (Ala.1983).

The Alabama Restitution to Victims of Crimes Act, by reference to the pertinent Alabama civil law, permits a victim to recover all reasonable expenses which are incurred due to the defendant's wrongful conduct. See, Foodtown Stores, Inc. v....