Jackson v. State

390 So. 2d 671, 1980 Ala. Crim. App. LEXIS 1310
CourtCourt of Criminal Appeals of Alabama
DecidedJuly 29, 1980
Docket1 Div. 107
StatusPublished
Cited by5 cases

This text of 390 So. 2d 671 (Jackson 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
Jackson v. State, 390 So. 2d 671, 1980 Ala. Crim. App. LEXIS 1310 (Ala. Ct. App. 1980).

Opinion

TYSON, Judge.

Michael Rider Jackson was indicted by the Mobile County Grand Jury for the offense of rape. Following a trial, the jury returned a verdict of “guilty of rape as charged in the indictment.” The trial court set punishment at twenty-eight years imprisonment in the penitentiary.

The record indicates this offense occurred on the morning of March 29, 1979, at the home of the prosecutrix, a nine year old child. She and her thirteen year old brother, Jimmy, were staying home from school that day because of sickness.

A man, later identified as the appellant, appeared at the prosecutrix’s house that morning inquiring whether he could clean the carpets in the house and whether the prosecutrix’s parents were home. The pros-ecutrix stated her parents were not home and that she would have to check with Jimmy about having the carpets cleaned. The appellant then asked to use the telephone to call his boss. When the prosecu-trix returned with Jimmy, the appellant was pretending to use the phone when he suddenly pulled out a pistol. The appellant grabbed Jimmy, slapped him, and told them both to lie on the floor. Jimmy lay on his stomach. The appellant told Jimmy he would kill him if he looked up.

The appellant proceeded to take all of the prosecutrix’s clothes off and took off his pants and underpants. The appellant said “some cuss words” and threatened to hurt the prosecutrix. The prosecutrix then testified to the following:

“Q Now, after he took his pants off and his underpants off did you then see that part of his body that is different than yours?
A Sort of.
Q Let me ask you this, Allie, do you know if he took part of his body and put it inside your body?
A Yes.” (R.p. 137-138)

The prosecutrix testified the appellant was hurting her, she was bleeding, and she began to scream and yell. The appellant mouthed more cuss words and told Jimmy to make the prosecutrix “shut up.” The appellant then got up, went into a bedroom, came out, wiped the prosecutrix with a wash cloth, and “done (sic) it again.” Jimmy testified he could hear his sister screaming and moaning again but could not tell what the appellant was doing to her. When the appellant finished he told Jimmy that if anyone was told of this incident he would kill the prosecutrix. Jimmy testified he saw that his sister was bleeding in the area below the stomach.

The prosecutrix made an in-court identification of the appellant as the man who forcibly ravished her. In addition, she testified to picking the appellant’s picture from several pictures shown to her by the police as “The man that raped me.” Jimmy also made an in-court identification of the appellant as the culprit.

The appellant denied committing the offense. The evidence for the appellant attempted to establish an alibi. When there is a conflict between the State’s case and the appellant’s alibi a jury question is presented. Crow v. State, Ala.Cr.App., 365 So.2d 1254, cert. den., Ala., 365 So.2d 1256 (1979).

I

At the conclusion of the State’s evidence the appellant made a motion to exclude the [673]*673evidence on the ground that penetration was not proven. He contends error from the denial of this motion.

An essential element of the offense of rape is an actual penetration of the female sex organ by the male sex organ. Reynolds v. State, 274 Ala. 171, 146 So.2d 85 (1962). “[Pjenetration to any particular extent is not required, . . . but some degree of entrance of the male organ within the labia pudendum is essential.” Harris v. State, Ala.Cr.App., 333 So.2d 871 (1976). The question of whether such penetration is accomplished is a factual determination for the jury. Long v. State, Ala.Cr.App., 370 So.2d 354 (1979).

From the testimony of the prosecu-trix we find the following:

“Q Now, after he took his pants off and his underpants off did you then see that part of his body that is different than yours?
A Sort of.
Q Let me ask you this, Allie, do you know if he took part of his body and put it inside your body?
A Yes.
Q And when the man did that did it hurt you?
A Yes.”
Q After the man put that part of his body into your body were you hurt at all?
A Yes.
Q Were you bleeding?
A Yes.
Q Now, after this happened what happened next?
A He went back in the bedroom and he came out and done it again.
Q Now, while he was gone did you stay in here?
A Yes.
Q So all you know is he went back into this part of the house?
A Yes and got a washcloth and wiped me.
Q Did he wipe you off with a cloth?
A Yes.
Q Okay, and then you say he did it again?
A Yes.
Q And by doing it again you mean that he took part of his body and put it in your body?
A Yes.
Q Did he hurt you a second time?
A Yes.” (R.p. 137-139)

As previously pointed out in this opinion, the prosecutrix specifically testified that the appellant was “The man that raped me.”

The State’s expert witness, Alilee Pill-man, Director of the Mobile Police Department Crime Laboratory, testified she performed several experiments and tests on evidence recovered from the crime scene. Her examination of a pair of panties disclosed the presence of large blood clots and semen stains. An examination of a washcloth also revealed the presence of semen stains and blood stains.

Dr. William Pasley, an obstetrician-gynecologist, testified he examined the prosecu-trix on the afternoon of March 29, 1979. She was experiencing vaginal bleeding at the time of the examination. Her injuries included a second degree perineal tear and a second degree vaginal tear. He explained these injuries as follows:

“And by second degree perineal tear I mean that the area between the posterior aspect of the vagina and the anus, that area between the vagina and the anus, there was a tear there. And by second degree, it was torn through the skin into the muscle.”

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King v. State
574 So. 2d 921 (Court of Criminal Appeals of Alabama, 1990)
Freeman v. State
555 So. 2d 196 (Court of Criminal Appeals of Alabama, 1988)
Mims v. State
500 So. 2d 100 (Court of Criminal Appeals of Alabama, 1986)
Rowe v. State
421 So. 2d 1352 (Court of Criminal Appeals of Alabama, 1982)
Ex Parte Behel
390 So. 2d 671 (Supreme Court of Alabama, 1980)

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Bluebook (online)
390 So. 2d 671, 1980 Ala. Crim. App. LEXIS 1310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-state-alacrimapp-1980.