Oliver v. State

453 So. 2d 1337, 1984 Ala. Crim. App. LEXIS 4737
Procedural entryThis page is a short order in Oliver v. State. Read the opinion of the Court — 435 So. 2d 207
Court of Criminal Appeals of Alabama·Decided March 20, 1984·No. 8 Div. 942·Published

Opinion

LEIGH M. CLARK, Retired Circuit Judge.

This case is now before this Court on an appeal from a judgment of conviction of the crime of carnal knowledge of a girl under the age of 12 years and a sentence to imprisonment for twenty-five years. The case was before this Court once before on an appeal from the same conviction and sentence, but such appeal was dismissed for its not having been timely filed. It was not filed within the forty-two day time limit. Appellant then challenged his conviction by petitions for post-conviction relief, including a petition for writ of error coram nobis filed in the court where the judgment now on appeal occurred. On an appeal from a denial of the petition, this Court, by a brief but comprehensive opinion, held that the defendant was entitled to an appeal of his conviction, reversed the judgment and remanded the case to the trial court with directions that “the petitioner be afforded an appeal.” Oliver v. State, Ala.Cr.App., 435 So.2d 207, 208, 209, (1983).

Appellant’s only contention for a reversal is the following:

“THERE WAS INSUFFICIENT EVIDENCE SUBMITTED AT TRIAL TO SUPPORT THE VERDICT OF GUILTY OF THE DEFENDANT.”

The alleged victim, whose name we refrain from calling, was ten years old at the time of the trial, nine years of age at the time of the alleged crime. She was the stepdaughter of the defendant. She and defendant were the only eyewitnesses to the incident upon which the prosecution was based. The defendant emphatically denied that he “did carnally know, or abuse in the attempt to carnally know” the alleged victim.

Dr. John Diplacido, an obstetrician, practicing his profession in Huntsville and on [1338]*1338the faculty of the University of Alabama, testified that he examined the alleged victim in the Huntsville Hospital on February 20,1979, which according to the undisputed evidence was the Monday following the Saturday evening of the alleged crime. He testified:

“Q. Doctor, tell the jury, if you will, just what you did, what examination you conducted on [the child] at that time.
“A. I talked to the child for a good while trying to determine what had happened to her and then examined her generally and vaginally to attempt to see if any injuries had taken place and to see if there was any evidence of rape.
“All right. Did you examine her vagina? “A. Yes I did.
“Q. What, if anything, did you find in that examination?
“A. Her hymen was torn and bleeding at the time of the examination.
“Q. All right.
“A. That’s the structure immediately inside the vagina.
“Q. Were there any other physical injuries that you observed on or about her body?
“A. No, sir.
“Q. Doctor, from your examination, were you able to determine how old this injury was?
“A. Only that it was not more than two or three days old, in that general range. “Q. There was still some blood present, some bleeding?
“A. Yes, sir.
“Q. Doctor, would that injury, based upon your training and background in medicine, would that injury be consistent with something having been inserted in her vagina?
“A. Yes.”

According to the testimony of the alleged victim, she and her sister had been visiting at a friend’s house in the neighborhood where the victim lived with her mother and her stepfather, her brother and her sister, and while at the friend’s house her stepfather came for her and her sister and they returned with her stepfather to her home. She and her sister then went upstairs, and her sister went to sleep. Thereafter, her stepfather came upstairs and took the victim downstairs. She testified:

“A. And then he told me to get on the couch.
“Q. That was Robert Earl told you to get on the couch?
“A. Yes.
“Q. And what did you do at that point? Did he come up to get you upstairs, did he take you downstairs?
“A. Yes.
“Q. He took you downstairs and you got on the couch?
“A. Yes.
“Q. And where is the couch located? “A. Over on this side.
“Q. Well, is it in the living room?
“A. Yes.
“Q. And there is a TV in there?
“A. Yes.
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“Q. And after he got you on the couch, did anything happen at that point?
“A. Yes.
“Q. What happened?
“A. He stuck his thing in me.
“Q. How did he do that? Did you have any pants on?
“A. No.
“Q. You didn’t have any pants on?
“A. No.
“Q. What happened to your pants?
“A. He pulled them down.
“Q. And did you have on your night gown?
“A. Yes.
“Q. You had on your nightgown and your pants?
“A. Yes.
[1339]*1339“Q. When he did that, did it hurt you?
“A. Yes.
“Q. Did anything happen to you when he did that?
“A. Yes.
“Q. What happened?
“A. Blood.
“Q. How long did that happen? Did it last a long time, or was it short?
“A. A long time.
“Q. A long time?
“A. Yes.
“Q. Did you cry?
“A. No.
“Q. Did you ask him to stop?
“A. No.
“Q. Were you scared?
“A. Yes.
“Q. After he did that, what did you do?
“A. Went upstairs.
“Q. When you got upstairs, what did you do?
“A. Went in the bathroom.
“Q. And did you do anything in the bathroom?
“A. Washed up.
“Q. Do you know about what time this happened?
“A. No.
“Q. Well, was it late at night?
“A. Yes.
“Q. After you washed up, what did you do?
“A.

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Oliver v. State, 453 So. 2d 1337, 1984 Ala. Crim. App. LEXIS 4737 (Ala. Ct. App. 1984).

453 So. 2d 1337 (Oliver v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Oliver v. State
435 So. 2d 207 (Court of Criminal Appeals of Alabama, 1983)