Whited v. State

CourtAlabama Court of Criminal Appeals
PartiesHoward Carl Whited v. State of Alabama
Docket NumberCR-09-0909
Decision Date20 December 2013

Howard Carl Whited
State of Alabama



OCTOBER TERM, 2013-2014
REL: December 20, 2013

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Blount Circuit Court

On Return to Second Remand


The appellant, Howard Carl Whited, was convicted of sodomy in the first degree, a violation of § 13A-6-63, Ala. Code 1975. The circuit court sentenced Whited to 35 years'

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imprisonment and ordered Whited to pay $50 to the Alabama Crime Victims Compensation Fund and court costs.

The evidence presented at trial established the following pertinent facts. In May 2005, when M.H. was 14 years old, she lived with her father in an apartment complex in Allgood. Danny Robertson lived next to M.H. and her father. Robertson testified that he had observed Whited at M.H.'s father's apartment approximately two to three times per week. Robertson stated that he could hear conversations and noise coming from M.H.'s apartment, and, specifically, on the evening of May 19, 2005, Robertson went to take a shower and could hear M.H. saying "Stop. Don't. No more, please." Robertson stated that, in addition to M.H.'s voice, he could hear three male voices. Robertson stated that after he got out of the shower he could hear M.H. "crying--weeping on the floor." (R. 38.) Robertson stated that there had been "[q]uite a few" incidents similar to this and that on those occasions he would see Whited at the apartment. After Robertson heard M.H. "crying--weeping on the floor" he reported what he had heard to the Blount County Sheriff's Office the following morning.

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M.H. testified that in 2005 Whited and another male--Edward Dunn--would visit her father and that Whited would be at her house "[e]very now and then." (R. 74.)

M.H. stated that one morning in February 2005, she woke up at approximately 6:00 a.m. and heard someone knocking on the front door. M.H. stated that she answered the door and saw Whited. M.H. testified that Whited asked whether M.H.'s father was home and she went and checked. When M.H. returned to the door to tell Whited that her father was not home, Whited came into the apartment and shut the door and gave her two pieces of gum. M.H. stated that she turned around and placed one piece of gum on the washing machine and Whited grabbed her around the waist and started kissing her neck. M.H. stated that Whited then "started talking to [her] telling [her] that he knows that [she] think[s] about him a lot and that [she] dream[s] about him." (R. 76-77.) M.H. stated that she told Whited that she did not "think like that" and told him that she "needed to get ready for school and that he needed to get ready to go to work and he needed to leave." (R. 77.) M.H. stated that Whited then told her that "everybody has got to grow up sometime" and that "if [she] ever changed

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her] mind, [she] could call him." (R. 77.) M.H. stated that after Whited left she began crying because she "couldn't believe what had just happened." (R. 77.) M.H. stated that when she got to school she told the school nurse what had happened.

M.H. further testified that in May 2005, she came home from school and Whited, Dunn, and her father were sitting on the couch "laughing and smoking pot." According to M.H., "they were looking at [her] weird" so she decided to go to her room. M.H. stated that she could hear the three men when she was in her room and that she stayed in her room until she got up to get something to drink. M.H. stated that she then got ready for bed but could not fall asleep because the three men were too loud. M.H. stated that, at some point, the bedroom door opened and Whited, Dunn, and her father entered the bedroom. M.H. stated, however, that "[i]t was dark" in the bedroom and that she "couldn't see their faces." (R. 81.) M.H. stated that Whited then came toward her and "grabbed [her] by the leg and he pulled [her] long ways on [her] bed over to [her] dad's bed." (R. 83.) M.H. stated that Whited then "took [her] panties off" and "got on top of [her] and

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then he stuck his penis in [her] back side and then somebody took an electric toothbrush and he stuck it inside [her]." (R. 83.) M.H. stated that Whited then "took a back massager and rubbed it on [her] back and all over. He got off [her] and someone else got on [her]." (R. 83.) M.H. stated that while this was happening she was on her stomach and that if she tried to get up "somebody would hit [her] on the back of the head." (R. 84.) M.H. further testified that, at some point, "[t]hey got off and [Whited] said if [she] told anybody, that he would kill [her]." (R. 85.)

After M.H. testified, the State rested and Whited moved for a judgment of acquittal, which the circuit court denied. Whited then presented evidence that tended to establish the following: Jeffrey Whited ("Jeffrey") testified that he is Whited's uncle and that on May 19, 2005, he visited with Whited at approximately 6:30 p.m. at Jeffrey's mother's house in Oneonta. Jeffrey stated that he remembered visiting with Whited on that date because he wrote it down in his journal, which, he said, he keeps for work. Jeffrey stated that Whited was at the house when he arrived and that Whited told Jeffrey that his back hurt. According to Jeffrey, Whited "looked

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rough." Jeffrey stated that he stayed at the house until approximately 9:00 p.m. and that Whited did not leave.

Deputy Sue Ashworth testified that she investigates sexual crimes for the Blount County Sheriff's Office. Ashworth testified that on May 26, 2005, she went to M.H.'s father's apartment, because she had received a complaint from Robertson about possible sexual abuse. Deputy Ashworth stated that on May 26, 2005, M.H. stated that "her father had put his penis in her butt" (R. 153) and that Whited and another person were involved as well. Deputy Ashworth also testified, however, that M.H. stated that she could not see their faces. Deputy Ashworth testified that during the interview she did not notice any marks on M.H. to indicate physical abuse. According to Deputy Ashworth, M.H., during a videotaped interview, stated that she was "penetrated vaginally" by both her father and Whited. (R. 156.) Deputy Ashworth testified that, at some point, she executed a search warrant on M.H.'s father's apartment and seized sheets, bedding, toothbrushes, and a massager for the purpose of having those items tested at the Department of Forensic Sciences ("DFS"). Deputy Ashworth testified that she received a report from DFS indicating that

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they were unable to locate any DNA evidence on the items. Deputy Ashworth further testified that M.H. received a medical examination that indicated that she had contracted ureaplasma urealyticum--a sexually transmitted disease. Deputy Ashworth stated that Whited was tested for the sexually transmitted disease and that his test result was negative. Deputy Ashworth testified, however, that Edward Dunn tested positive for ureaplasma urealyticum. Deputy Ashworth stated that, in July 2005, she interviewed Whited and Whited denied any involvement with the offense.

On cross-examination, Deputy Ashworth stated that M.H. told her that, before May 19, 2005, M.H. had been molested by her father for a long period (R. 182) and, on those occasions, would scream for her father to stop.

Brad Sims, a child-abuse-and-neglect investigator for the Department of Human Resources, testified that he and Deputy Ashworth met with M.H. in May 2005. According to Sims, M.H. did not tell them what occurred on May 19, 2005, but only stated that she had been molested by her father. Sims stated that at that time there was no indication that anyone but M.H.'s father was involved. Sims testified that on June 15,

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2005, he and Deputy Ashworth again met with M.H. and that, during that meeting, M.H. for the first time mentioned both Whited and Dunn. When confronted with his report of that meeting, however, Sims agreed that the report did not mention Whited or Dunn and stated only that "[M.H.] told us again that she had been molested by her father. She indicated that he had anal sex with her in the bedroom they shared." (R. 232.)

On cross-examination, Sims testified that he had investigated Whited in February 2005, because M.H. had alleged that Whited had come to her father's apartment and kissed her on the neck and also mentioned to M.H. that he had been having dreams about engaging in sexual intercourse with her. Sims stated that, although Whited did not deny going to the apartment, he denied any wrongdoing. Sims conceded that no charges were brought against Whited arising out of the events that M.H. alleged occurred in February 2005.

Hulan Whited ("Hulan"), Whited's father, testified that on May 19, 2005, he and Whited were

"over at Mr. Owen's house. His lawnmower had broke down with him. He had to get a part for it--had to go to Cleveland. We had to mow Ms. Turley's yard. We worked on it until noon and got us a sandwich and went over there and mowed her yard. [Whited] hurt his back. We got home and he was in the bed a week."

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(R. 236.) Hulan further testified that on May 19, 2005,...

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