Watson v. State, 5 Div. 56

• Decision Date: 08 September 1987
• Docket Number: 5 Div. 56
• Citation: 538 So.2d 1216
• Parties: Roosevelt WATSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1216

538 So.2d 1216

Roosevelt WATSON v. STATE.

5 Div. 56.

Court of Criminal Appeals of Alabama.

Sept. 8, 1987.

Rehearing Denied Oct. 13, 1987.

Certiorari Granted Dec. 16, 1988.

J. Michael Williams, Sr., Auburn, for appellant.

Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellant, Roosevelt Watson, was indicted and convicted for the offense of rape in the first degree; specifically, for the rape of one of his daughters, who was less than 12 years of age, while he was 16 years or older. Ala. Code (1975), § 13A-6-61(a)(3). Watson was subsequently sentenced to a term of life imprisonment and fined $100 for the Victims Compensation Fund.

I

Watson contends that "the evidence did not sustain a conviction for rape I." We find that the prosecution presented a prima facie case of the offense of rape in the first degree, as defined by § 13A-6-61(a)(3). Clearly, the prosecution presented sufficient evidence of the age requirements of the prosecutrix ¹ and Watson. The testimony also presented evidence of the occurrence of sexual intercourse between the prosecutrix and Watson on her tenth or eleventh birthday. Although the prosecutrix did not describe the act in mature terms, a jury question was presented, for she did testify that "[my father] had sex with me" and "[h]e stuck the private thing in my private." The nature of penetration need not be proved in any particular form of words. Swint v. State, 455 So.2d 285, 287 (Ala.Cr.App.1984).

II

During the presentation of its case, the prosecution introduced testimony from the prosecutrix's mother of prior sexual mistreatment by appellant of the prosecutrix's sister. The prosecutrix's mother testified, in pertinent part, as follows: On March 22, 1983, approximately nine months prior to the alleged offense against the prosecutrix, which is alleged to have occurred on December 22, 1983, the mother observed her ex-husband, appellant, in the prosecutrix's sister's room. She further observed that the prosecutrix's sister was in her bed and undressed, and appellant, with his pants down, was standing beside her bed. The mother asked him what they were doing, and he said they were "just playing, that it was nothing." At the time, the prosecutrix's sister was 12 years old.

The mother further testified that both the prosecutrix and the prosecutrix's sister became pregnant and that the sister's baby was stillborn on August 27 or 28, 1984, and the prosecutrix's baby was born on September 27, 1984. She also testified about the two girls' explanations after their deliveries, as follows:

"Q. They told you how they got pregnant?

"A. Yes.

"Q. What did they say to you?

"....

"A. They said that their father would come upstairs on nights that he stayed there at the house. He would come upstairs and get them and take them back downstairs and force them to lay down on the floor. And tell them that if they didn't that he would kill them.

"Q. Did they tell you how many times he forced them to do this?

"A. Yes. As many as two or three times each. [The prosecutrix's sister] said one night she was up in her bed asleep, and he came upstairs and got her and took her downstairs and forced her on the couch at gunpoint and had intercourse with her."

Watson contends that the trial court erred in admitting testimony concerning his prior sexual mistreatment of the prosecutrix's sister and the resulting pregnancy and stillbirth and the hearsay testimony to In determining the merits of this argument, we must keep in mind the recent case of Anonymous v. State, 507 So.2d 972 (Ala.1987), wherein our supreme court, in reviewing the defendant's convictions on three counts of first degree rape of one of his daughters and three counts of incest with the same daughter, applied the following general rule to evidence very similar to that now before us: "In a prosecution for one offense, evidence of collateral crimes or acts is generally inadmissible to prove the guilt of the accused." Id. at 973 (footnote omitted). It held the following evidence to be inadmissible because the evidence fell within no exception to the general exclusionary rule barring evidence of collateral crimes or acts: (1) Testimony concerning the defendant's prior sexual mistreatment of the prosecutrix, his daughter; (2) testimony of the prosecutrix's pregnancies and abortions which occurred prior to the acts alleged in the indictment; (3) testimony concerning the defendant's prior sexual mistreatment of another daughter; and (4) testimony of the other daughter's pregnancy and subsequent birth of a child. Id. at 975.

the effect that the prosecutrix's sister had said that he had impregnated her.

In determining whether Anonymous requires that this cause be reversed, we begin our analysis with the holding that the evidence of the instant prosecutrix's pregnancy and delivery was admissible. ² We view the Anonymous court's determination that evidence of the pregnancy of the prosecutrix is inadmissible to be limited in application to evidence of a pregnancy resulting from an inadmissible collateral sexual act. The Anonymous court held that the prior collateral acts, from which the prosecutrix's pregnancies and abortions resulted, were not admissible under any exception to the general rule, and, as it follows, that evidence of the pregnancies and abortions was inadmissible. Id. at 974-75. However, in the instant case, we find that evidence of prosecutrix's pregnancy and delivery, which allegedly resulted from the act charged in the indictment, was properly admitted under the following general rule, which we find to be unaffected by Anonymous:

"In ... any ... criminal proceeding involving a charge of sexual intercourse with a woman, the fact of the female's having given birth to a child in consequence of such intercourse is admissible. In such criminal charges as adultery, carnal knowledge and incest, for example, it has been held that evidence that a child was born to the woman involved, if the laws of nature would suggest that the time of conception was about the time of the claimed act of sexual intercourse, is admissible.... It should be noted, however, that if the birth of the child occurred at such a time that conception at the time of the claimed intercourse was impossible, then proof of such birth is not admissible as tending to show the claimed intercourse."

C. Gamble, McElroy's Alabama Evidence, § 51.01(1) (3d ed. 1977) (footnotes omitted). See also Harrison v. State, 235 Ala. 1, 3, 178 So. 458, 460 (1937), cert. denied, 235 Ala. 292, 178 So. 460 (1938) (wherein the court, in holding admissible the prosecutrix's testimony that the accused was the father of her child, found the evidence to be relevant as "support[ing] the affirmative of the issue that the defendant had sexual intercourse with the mother"); Hall v. State, 378 So.2d 1193, 1194 (Ala.Cr.App.1979), cert. denied, 378 So.2d 1196 (Ala.1980) (wherein the court, in holding that evidence of the prosecutrix's pregnancy, after the alleged rape and at a time consistent with conception about the time of the offense, was admissible along with evidence of the prosecutrix's later abortion, stated that "there is general uniformity in holding that evidence of pregnancy of the prosecutrix is admissible in cases of statutory rape"); Davis v. State, 21 Ala.App. 595, 110 So. 599 (1926); Davis v. State, 20 "We know as a scientific fact that when a child is born there has been an act of sexual intercourse, and as a matter of common knowledge we also know that the period of normal gestation is approximately 270 days." Davis., 20 Ala.App. at 464, 103 So. at 74. In light of the properly admitted fact of the prosecutrix's pregnancy, which allegedly resulted from the charged act, and Watson's defense that he was not present on the alleged night of conception and, thus, did not commit the crime, the question of the rapist's identity was put into issue. See Johnson v. State, 242 Ala. 278, 280, 5 So.2d 632, 634 (1941), cert. denied, 316 U.S. 693, 62 S.Ct. 1299, 86 L.Ed. 1763 (1942); Beavers v. State, 511 So.2d 951 (Ala.Cr.App.1987); Smith v. State, 409 So.2d 455 (Ala.Cr.App.1981). It is upon this conclusion that we again distinguish the holdings of Anonymous. In Anonymous, the court found the following:

Ala.App. 463, 103 So. 73 (1925) (wherein the court held that proof of the birth of a child to a girl under sixteen years of age is material and relevant as establishing the corpus delicti of carnal knowledge and tending to fix the time of the crime); and Mitchell v. State, 20 Ala.App. 165, 101 So. 168 (1924). Accordingly, in the present case, evidence of the prosecutrix's pregnancy, which allegedly resulted from the charged crime, was material and relevant as tending to prove the corpus delicti, for the proof tended to "[place] cause and effect in proper point of time." Id. at 166, 101 So. at 169.

"The identity of the person who actually committed the acts with which the defendant was charged was not at issue. The defendant did not argue that 'someone else committed the acts with which he was charged'; instead, he merely denied that the acts ever occurred. Therefore, because there was no 'real and open' issue concerning identity, the collateral acts could not be admissible as going toward such an issue."

507 So.2d at 975. Under the facts before us, one being the prosecutrix's pregnancy approximately nine months after the alleged offense, it cannot be argued that the charged act never occurred; thus, the evidence presented a "real and open" issue concerning who raped the prosecutrix.

It is upon our finding that the jury was presented with the question of the rapist's identity that we base our conclusion that evidence of Watson's sexual mistreatment of the prosecutrix's sister was admissible. We find this evidence to have been admissible under the exception "relevancy in various particular crimes." See Schroeder, Evidentiary...