D.E.R. v. State

254 So. 3d 242
CourtCourt of Criminal Appeals of Alabama
DecidedDecember 15, 2017
DocketCR–15–1183
StatusPublished

This text of 254 So. 3d 242 (D.E.R. v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D.E.R. v. State, 254 So. 3d 242 (Ala. Ct. App. 2017).

Opinion

JOINER, Judge.

This Court's opinion of April 28, 2017, is withdrawn, and the following is substituted therefor.

D.E.R. was convicted of first-degree sodomy, see § 13A-6-63, Ala. Code 1975, and sexual abuse of a child less than 12 years old, see § 13A-6-69.1, Ala. Code 1975. D.E.R. was sentenced to concurrent terms of 25 years' imprisonment for the sodomy conviction and 20 years' imprisonment for the sexual-abuse conviction. All appropriate fines and fees were assessed against D.E.R.

Facts and Procedural History

The evidence at trial tended to show the following: K.R., who was 13 years old at the time of trial, testified that she and K.L., her cousin, would sometimes visit D.E.R., a relative. One day in December 2011, when K.R. and K.L. were eight years old, they went to D.E.R.'s house to deliver his mail. K.R. testified:

"A. We went down there. He asked us if we let little boys play in our panties and we said, 'No.' He said, 'I'll give you a dollar if you let me.'
"....
"A. After he asked us, I thought he was playing at first and then we went out-I went outside. And then when I looked and came back in, he was on his knees at the couch with [K.L.]
"....
"Q. Did you see this man here touch your cousin?
"A. Yes, ma'am.
"Q. Tell the jury what you saw, please.
"A. I seen him put his hand in her pants."

(R. 210-12.) K.R. testified that she and K.L. then went to K.R.'s mother's house. K.R. told her mother that she had seen D.E.R. touch K.L., and K.R.'s mother informed K.L.'s parents. K.R. identified D.E.R. in court. On cross-examination, K.R. testified that she did not see D.E.R. kiss K.L.'s vaginal area, as K.L. alleged.

K.L., who was 12 years old at the time of trial, testified that she spent a lot of time with K.R., whose father lives near D.E.R.'s house. K.L. testified that she and K.R. visited D.E.R. on December 16, 2011, and that their visit was different than usual because D.E.R. "asked us if we let little boys play in our panties." K.R. left D.E.R.'s house, but K.L. remained seated *245on a couch in the living room. D.E.R. then moved in front of K.L. and put his hands in K.L.'s pants; D.E.R. touched K.L.'s genitals underneath her underwear. K.L. initially testified that she could not remember if D.E.R. touched her with any other part of his body. After some coaxing, K.L. testified as follows:

"Q. [K.L.], do you remember telling people that [D.E.R.] kissed you on your own spot?
"A. Yes, ma'am.
"Q. And did that happen?
"A. Yes, ma'am.
"Q. Did that happen that day when you were there when he put his hand in your panties?
"A. Yes, ma'am.
"....
"Q. Okay, [K.L.], tell the jury, if you will, what happened with [D.E.R.] when he did those things to you. We need you to tell us. Just the truth of what happened, okay?
"A. (No response.)
"Q. I'm sorry, sweetie. Can you tell the jury what he did?
"A. (No response.)"

(R. 265-67.) After a break, K.L. continued testifying:

"Q. [K.L.], I know this is hard for you to talk about, but can you please tell the jury where [D.E.R.] touched you?
"A. On my private part.
"Q. Okay. And what did he touch you with?
"A. His hand.
"Q. Okay. Did he touch you with any other part of his body?
"A. Not that I can remember.
"Q. Okay. Did he ever put his mouth on you?
"[DEFENSE COUNSEL]: Objection, Your Honor.
"THE COURT: Overruled.
"[DEFENSE COUNSEL]: Asked and answered.
"Q. Did he put his mouth on you?
"A. Yes, ma'am.
"Q. Where did he put his mouth?
"A. On my private part.
"Q. Okay. And that really happened?
"A. Yes, ma'am.
"Q. And can you tell this jury whether or not what you've told them here today, was it true?
"A. Yes, ma'am."

(R. 268-69.)

On cross-examination, K.L. had difficulty answering a number of D.E.R.'s questions; she could not recall several details of the events that occurred on December 16, 2011, and portions of her testimony were inconsistent with K.R.'s testimony. Specifically, K.L. testified:

"Q. Well, I know this is tough for you, but I need to know how you claim that [D.E.R.] kissed your private parts. How did he go about doing that?
"A. (No response.)
"Q. Let me try to help you, I guess. You said he kissed your private part, right?
"A. Yes.
"....
"Q. Did he pull your pants off? "A. No.
"Q. He did not. Okay. How did he kiss your private part with your pants on?
"A. I don't know."

(R. 280-81.)

T.L., K.L.'s mother, testified that D.E.R. is T.L.'s uncle. T.L. testified that, after K.R.'s mother contacted her, she and K.L.'s father went to K.R.'s mother's house. T.L. testified that K.L. was extremely *246upset and did not want to discuss the incident. K.R. told T.L. and the other adults present that D.E.R. had touched K.L. but not that he had placed his mouth on K.L. T.L. then took K.L. to Riverview Regional Medical Center ("RRMC") to "make sure that nothing else had happened" to K.L. T.L. testified that K.R. had not told her that D.E.R. had kissed K.L.'s vaginal region; instead, T.L. testified that she first became aware of that specific accusation during the trial.

Because of K.L.'s difficulty testifying, the State obtained the medical records from K.L.'s visit to RRMC and moved to introduce them under the rule of completeness, Rule 801(d)(1)(B), Ala. R. Evid., the child-victim-witness act, and "as medical business records." In response, D.E.R. argued that the records should not be admitted because, he said: (1) the patient-declarant statements1 contained therein were actually made by T.L.; (2) the statements contained in the records had already been testified to under oath; (3) the records were not certified; (4) the records were not properly authenticated absent witness testimony; and (5) the records were excluded by the trial court's previous ruling on D.E.R.'s motion in limine.2

The trial court ruled that the records were not excluded by D.E.R.'s motion in limine because until K.L.'s difficulty testifying the State had not intended to introduce the records.

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Bluebook (online)
254 So. 3d 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/der-v-state-alacrimapp-2017.