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D.E.R. v. State

Alabama Court of Criminal Appeals

April 28, 2017

D.E.R.
v.
State of Alabama

         Appeal from Etowah Circuit Court (CC-12-426.01; CC-12-426.02)

          JOINER, Judge.

         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 on 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 ...

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