Rock v. State

558 So. 2d 967, 1989 Ala. Crim. App. LEXIS 772, 1989 WL 140724
CourtCourt of Criminal Appeals of Alabama
DecidedSeptember 29, 1989
Docket6 Div. 612
StatusPublished
Cited by1 cases

This text of 558 So. 2d 967 (Rock 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
Rock v. State, 558 So. 2d 967, 1989 Ala. Crim. App. LEXIS 772, 1989 WL 140724 (Ala. Ct. App. 1989).

Opinion

TAYLOR, Presiding Judge.

The appellant, Randy Dean Rock, was charged with rape, sodomy, and sexual abuse. He was convicted of sodomy in the second degree and sexual abuse in the second degree, violations of §§ 13A-6-64 and 13A-6-67, Code of Alabama 1975. He was sentenced to imprisonment for eight years and four months on the sodomy conviction and one year on the sexual abuse conviction.

The state’s evidence tended to show that the victim, appellant’s sister-in-law, had been molested by the appellant since she was eight years old. The victim has two older sisters, the eldest of whom was married to the appellant. At the time of the trial, the victim was 17 years old. She testified as to numerous instances in which the appellant rubbed her breasts and behind. She also stated that many times he would “put his finger in” her vagina. She further testified that the appellant on more than one occasion performed oral sex upon her and asked her to rub his penis. At the time of the first instance, the appellant told her that if she told anyone, someone would get hurt.

The victim testified that, on one occasion, just prior to her 12th birthday, she went over to the appellant’s house to feed the dogs, since his foot was in a cast. Once she entered the house, the appellant called her upstairs. When she went upstairs to where the appellant was, she saw the appellant on the bed nude. The victim testified that at this time the appellant put his penis in her vagina.

The victim further stated that in 1985, she and the appellant were swimming in the victim’s pool. The appellant called her over to the diving board. He told her they were going to do what is called “sixty-nine,” which he proceeded to do.

The victim first told one of her sisters (not the sister married to the appellant) about the instances. Then both girls went to talk with their mother.

The appellant’s wife testified that the appellant admitted that he had done those things to her youngest sister, the victim. Subsequently, appellant’s wife filed for divorce.

On appeal, the appellant raises four issues.

I

Initially, appellant contends that the trial court erred in allowing testimony of collateral offenses involving the victim’s sister who was not married to appellant.

The record reflects that the appellant denied that he had told his wife that he had had intercourse or oral sex with the victim. On cross-examination, the appellant denied having had sexual relations with the victim. He further stated that he had touched the victim’s breasts, but that the touching was accidental, not intentional, and that it happened when they were “horsing around” in the pool. The prosecutor then asked the appellant if he had touched the middle sister’s breasts and vagina. He stated that [969]*969he had, but that that touching was also accidental, not intentional, and had also happened in the pool.

Appellant contends that the trial court erred in allowing the questions concerning prior instances involving the “middle” sister. Specifically, he claims that this was evidence of collateral acts and was offered only to show bad character.

“On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character....”

C. Gamble, McElroy’s Alabama Evidence, § 69.01(1) (3d ed. 1977). Evidence of another offense is admissible if it is relevant for any purpose other than showing guilt through the medium of bad character. See Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326 (1973). See also, Schroeder, Evidentiary Use in Criminal Cases of Collateral Crimes and Acts: A Comparison of the Federal Rules and Alabama Law, 35 Ala.L.Rev. 241 (1984). The established exceptions to the general exclusionary rule concerning collateral acts include use of collateral acts to show intent, motive, and identity. See, McElroy’s, supra.

In Lee v. State, 246 Ala. 69, 18 So.2d 706 (1944), the appellant was charged with the carnal knowledge of his daughter. The state introduced evidence from three of her sisters that on many occasions the appellant had had sexual intercourse with them. The court stated that such evidence was admissible; however, the questions did not stop there. One sister was permitted to testify that she had become pregnant by her father and that he had ultimately taken her to have an abortion. The Alabama Supreme Court stated:

“The fact of Ruby’s pregnancy, through the agency of her father, does tend to shed light on the main inquiry, but unlike the fact of sexual intercourse with her father, it also tends to unduly multiply the issues and to divert the minds of the jury from the main issue.”

Lee, 246 Ala. at 72, 18 So.2d 706.

More recently, our Supreme Court in Anonymous v. State, 507 So.2d 972 (Ala.1987), faced an issue similar to that in the case at bar. In Anonymous, the appellant was charged with rape, a general intent offense. The court acknowledged that evidence of collateral acts may be received into evidence under the “intent” or “identity” exception; however, it found that neither exception applied in that instance.

The decision in Anonymous was further refined by our Supreme Court in Bowden v. State, 538 So.2d 1226 (Ala.1988), dealing with the “motive” exception to the general exclusionary rule. The court stated that “testimony offered for the purpose of showing motive is always admissible.” However, “where the defendant is not charged with the offense of incest, ... it becomes questionable whether evidence establishing that the accused raped and/or sexually abused one or more of his other children is admissible to prove his motive in raping the victim, also his child.” Bowden, at 1235.

In Bowden, our Supreme Court did not hold that evidence of a collateral act of incest could never be admissible where the offense charged is not incest. It did point to some limitations. It cited Brasher v. State, 249 Ala. 96, 30 So.2d 31 (1947), for the proposition that the collateral acts, to be admissible, should share some similarities.

In the instant case, the two girls involved were the younger sisters-in-law of the appellant. They were both minors. There was only two years’ difference in their ages. Finally, the allegations involving the two girls were almost identical in nature.

Evidence of collateral acts is not always inadmissible. In cases involving sex crimes, such evidence is admissible, but only if it falls under one of the recognized exceptions to the exclusionary rule. See Staten v. State, 547 So.2d 607 (Ala.1989).

In this case, we hold that the collateral acts were admissible under the “intent” exception. The appellant denied doing anything to the victim except accidentally touching her in the swimming pool. Further, the court instructed the jury to con[970]*970sider the evidence of collateral acts only in relation to the sodomy and sexual abuse charges, not in regard to the rape charge. The trial court relied on the “intent” exception. Thus, the court committed no error in receiving this evidence.

II

Appellant’s next contention is that the trial court erred in denying his motion for new trial on the sexual abuse charge.

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Bluebook (online)
558 So. 2d 967, 1989 Ala. Crim. App. LEXIS 772, 1989 WL 140724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rock-v-state-alacrimapp-1989.